Second Circuit Enforces New York Transportation Controls Despite Tenth Amendment Objections

The Second Circuit Court of Appeals has ruled that New York City must implement and enforce four transportation control strategies contained in the New York air quality implementation plan.¹ In a citizens suit brought by several environmental groups and individuals under § 304 of the Clean Air Act seeking enforcement of the plan, the court held that the city was precluded from raising constitutional defenses based on the Tenth Amendment as recently construed by the Supreme Court in National League of Cities v. Usery² because it had failed to raise such objections to the Environmental Protection Agency's (EPA) 1973 approval of the plan in a petition for review of that approval within the 30-day period allowed by § 307(b)(2).³ The court also distinguished Brown v. EPA⁴ and several other decisions⁵ which struck down, because of constitutional considerations, EPA's program of forcing state and local governments to implement transportation controls and in which appeals are now awaiting decision before the Supreme Court. Here, the court emphasized, the city and the state developed and consented to the measures contained in the implementation plan, and judicially-ordered lenforcement will not substantially usurp integral local governmental functions.

Case History

The New York City transportation control dispute has a lengthy procedural history. The state and the city developed the controls as part of the revised implementation plan submitted by the state to EPA in 1973, and approved at that time by the agency under § 110(a) of the Act. The validity of EPA's approval was upheld in 1974 by the Second Circuit in a proceeding for direct review pursuant to § 307.⁶ New York State joined EPA in this successful defense of the plan's adequacy.

The state and the city proved less eager to implement the measures contained in the plan than to develop and defend them, however. In 1976, a citizens suit under § 304 alleging failure by the city to put a number of required transportation controls into effect resulted in a decision from the court of appeals ordering that partial summary judgment be granted in favor of plaintiffs for the enforcement of four strategies as to which the city admitted being in default.⁷

In a petition for rehearing, the city for the first time raised constitutional objections to forced implementation of reductions in business district parking, a selective ban on taxicab cruising, tolls on the East and Harlem River Bridges, and night-time freight movement programs. The court of appeals denied the petition without prejudice to the district court's consideration of these issues. On remand, the lower court ruled that congressional use of the Commerce. Clause to compel the city through the § 304 citizens suit mechanism to enforce the transportation controls would violate the city's Tenth Amendment rights and modified its earlier grant of partial summary judgment accordingly.⁸

Plaintiffs promptly moved the court of appeals to vacate this decision and issue a writ of mandamus against District Judge Duffy on the ground that his ruling violated the court's earlier directions and thus consituted an abuse of discretion. The Second Circuit, agreeing with this characterization of the district court's action, mandated Judge Duffy to order the city to implement and enforce the four disputed strategies.⁹

The Second Circuit Decision

The court first disposed of a preliminary issue by deciding that as delegatee of certain state governmental functions, the city had standing to claim that enforcement of the plan would impermissibly transgress Tenth Amendment rights. Judge Mansfield then confronted the substantive question of whether the city had waived its right to raise this constitutional objection in failing to assert it by way of an earlier § 307 petition for direct review of EPA's 1973 approval of the implementation plan.

Section 307(b)(2) precludes any defense in an enforcement proceeding for which "review could have been obtained" in a petition for review of approval of the plan filed within 30 days of that approval. Characterizing this provision as a "bastion of enforceability" which was intended to assurethat a plan would become final and enforceable at a definite time, the court emphasized that the city as co-draftsman of the transportation control measures was clearly aware of their scope and terms at the time the plan was approved by EPA, and that judicial [7 ELR 10048] review of the current constitutional objections to enforcement could have been obtained at that time. The court held that since the city voluntarily chose to commit itself to enforcement of the plan rather than raise these constitutional contentions by way of a petition for review of approval of the plan in 1973, it had waived its right to assert them and was precluded by § 307(b)(2) from raising them in a citizens suit enforcement proceeding instituted under § 304.

Tenth Amendment Questions

Judge Mansfield thus found reversal of the district court's modification of partial summary judgment necessary because the claims upon which it was based were barred by § 307. The court nevertheless went on to examine the merits of the city's constitutional claims and concluded that, even had they not been waived, they were insufficient to justify the district court's action.

Judge Mansfield first distinguished the decisions in Brown v. EPA¹⁰ and several related cases¹¹ on factual grounds. He noted that these rulings concerned federal attempts to force states to implement federally developed and promulgated transportation control measures to which they had never consented. Here, the court emphasized, the state and the city made the basic policy decisions involved in developing the transportation control plan, promulgated that plan with assurances that they would fulfill their enforcement duties under it, and thereby became obligated to do so.

In Judge Mansfield's view, New York State was acting as a partner in a scheme of cooperative federalism. In consultation with the city, it made the essential policy choices concerning the means by which it would achieve compliance with federal air pollution standards which were validly enacted by Congress under its Commerce Clause power. In so doing, the city and the state became obligated to implement these measures. In return, the state was assured that the federal government could not impose or administer its own pollution controls within the state.

The court concluded that this regulatory scheme does not impermissibly interfere with the governmental functions of the state or its subordinate arm, the city, so as to violate the limitations on federal power embodied in the Tenth Amendment as construed in National League of Cities.¹² In determining whether such an exercise of the federal commerce power impermissibly impairs Tenth Amendment-protected state sovereignty, a court, according to Judge Mansfield, must balance the reason for the exercise against the extent of usurpation of state policy making or invasion of integral state functions. Minimizing the impact that enforcement will have on New York City's police power, legislative and budgetary policies, especially in view of its participation in creating the program, Judge Mansfield also rejected the notion that city action in the area of transportation control is an intrinsically local governmental function or service.

For support on this point, the court looked to United States v. California¹³ and Fry v. United States,¹⁴ two decisions distinguished by the Supreme Court in National League of Cities in which the Court upheld orders requiring a state to operate its railroad lines in conformity with federal standards and freezing the wages of state employees to combat inflation. In explaining the consistency between Fry and the National League of Cities holding that the federal government cannot impose minimum wage levels for state government employees, the Court noted that in Fry there was a

serious problem which endangered the well being of all the component parts of our federal system and which only collective action by the National Government might forestall,¹⁵

and a program that "displaced no state choices as to how governmental operations should be structured…."¹⁶ According to Judge Mansfield, this description is equally applicable to the New York transportation control plan which includes measures chosen by the city and the state to combat a significant national health problem — air pollution — that respects no political boundaries.

Conclusion

The most recent Second Circuit decision in Friends of the Earth v. Carey confirms that the duties undertaken by state and local governments in a state-promulgated air quality related transportation control plan become enforceable against those entities once the plan is approved by EPA under § 110(a)(2).¹⁷ The ruling also reiterates the general importance and utility of the § 304 citizen suit enforcement mechanism.

The court's lengthy discussion of the city's Tenth Amendment claims must be classed as dicta because of its earlier holding that these claims were barred under § 307(b)(2). Despite this limitation and the court's admonition that it intimated no view on the rectitude of the Brown decision, the analysis distinguishing transportation control measures for the purpose of air pollution abatement from integral state and local governmental functions does suggest a conceptual basis upon which a reversal in Brown could be squared with National League of Cities. Additional language¹⁸ in the latter opinion, not mentioned by Judge Mansfield, which emphasized the emergency nature of the wage freeze in Fry and the fact that it reduced rather than increased state expenditures indicates, however, that such a resolution might still be difficult to obtain.

1. Friends of the Earth v. Carey, __ F.2d __, 7 ELR 20177 (2d Cir. Jan. 18, 1977).

2. 426 U.S. 831 (1976).

3. 42 U.S.C. § 1857h-5(b)(2), ELR 41218.

4. 521 F.2d 827, 5 ELR 20546 (9th Cir. 1975), cert. granted, 426 U.S. 904 (June 1, 1976). The case was argued on January 12, 1977.

5. District of Columbia v. Train, 521 F.2d 971, 6 ELR 20007 (D.C. Cir. 1975), cert. granted, 426 U.S. 904 (June 1, 1976); Maryland v. Train, 530 F.2d 215, 5 ELR 20651 (4th Cir. 1975), cert. granted, 426 U.S. 904 (June 1, 1976). Arizona v. EPA, 521 F.2d 825 (9th Cir. 1975), cert. granted, 426 U.S. 904 (June 1, 1976). These cases were consolidated with Brown for purposes of oral argument.

6. Friends of the Earth v. EPA, 499 F.2d 1118, 4 ELR 20627 (2d Cir. 1974).

7. Friends of the Earth v. Carey, 535 F.2d 165, 6 ELR 20488 (2d Cir. Apr. 26, 1976).

8. Friends of the Earth v. Carey, 422 F. Supp. 638 (S.D.N.Y. July 13, 1976).

9. __ F.2d at __, 7 ELR at 20183-84.

10. 521 F.2d 827, 5 ELR 20546 (9th Cir. 1975), cert. granted, 426 U.S. 904 (June 1, 1976).

11. See note 5 supra.

12. 426 U.S. 831 (1976).

13. 297 U.S. 175 (1936).

14. 421 U.S. 542 (1975).

15. 426 U.S. at __, 96 S. Ct. at 2474.

16. Id.

17. 42 U.S.C. § 1857c-5(a)(2), ELR 41204.

18. 426 U.S. at __, 96 S. Ct. at 2474-75.