Appeal from a judgment of the United States District Court for the Southern District of New York, Thomas P. Criesa, Judge, dismissing an action brought under the citizen suits provision of the Clean Air Act, 42 U.S.C. § 7604(a)(1), on the ground that the proposed amended complaint failed to state a claim, and denying leave to replead. Affirmed.
Feinberg, Chief Judge, Oakes, and Pratt, Circuit Judges.
This appeal arises from the most recent in a long series of actions that have been brought in state and federal courts by these plaintiffs and others similarly situated, who seek to forestall construction of the proposed 42nd Street Development Project ("the project") in New York City. The facts surrounding the impetus for the project and the complex procedural machinations that have accompanied the planning stages are described in Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429 (1986), aff'g 110 A.D.2d 304, 494 N.Y.S.2d 700 (1st Dep't 1985). The goal of the project is to eliminate "physical, social and economic blight" in the Times Square area, Rosenthal & Rosenthal, Inc. v. N.Y. State Urban Dev. Corp., 771 F.2d 44, 45 (2d Cir. 1985) (citing Natural Resources Defense Council, Inc. v. City of New York, 672 F.2d 292, 294 (2d Cir.), cert. dismissed, 456 U.S. 920, 102 S. Ct. 1963, 72 L. Ed. 2d 462 (1982)), cert. denied, 475 U.S. 1018, 106 S. Ct. 1204, 89 L. Ed. 2d 317 (1986). After extensive study and review pursuant to state statute, the City of New York, the New York State Urban Development Corporation ("UDC"), its subsidiary, the Times Square Redevelopment Corporation, and various private developers have decided that this goal will be achieved by the construction of four office towers, a hotel, eight renovated theatres, a wholesale mart, restaurants, retail spaces, and a renovated subway station. See Jackson, 503 N.Y.S.2d at 302-03. The project area has been divided into twelve sites between 40th and 43rd streets.
Opposition to the project by area business owners and residents, historical preservationists, and environmentalists has so far produced more than two dozen actions against the project. Residents fear that they will be driven out by skyrocketing property values; environmentalists claim that the project will exacerbate traffic congestion, thereby increasing levels of air pollution; others seek to preserve landmark theatres from demolition. There have already been unsuccesssful challenges under the antitrust laws, Cine. 42nd St. Theater Corp. v. Nederlander Org., 609 F. Supp. 113 (S.D.N.Y. 1985), aff'd, 790 F.2d 1032 (2d Cir. 1986); on first amendment, due process and equal Protection grounds, G & A Books v. Stern, 604 F. Supp. 898 (S.D.N.Y.), aff'd, 770 F.2d 288 (2d Cir. 1985), cert. denied, 475 U.S. 1015, 1065. Ct. 1195 (1986); as an allegedly unconstitutional exercise of the eminent domain power, Rosenthal & Rosenthal, Inc. v. N.Y. State Urban Dev. Corp., 605 F. Supp. 612 (S.D.N.Y.), aff'd, 771 F.2d 44; and under New York City's Uniform Land Use Review Procedure, Rosenthal & Rosenthal, Inc. v. New York City Bd. of Estimate, 114 A.D.2d 1054, 495 N.Y.S.2d 549, aff'd, 67 N.Y.2d 349, 502 N.Y.S.2d 707, 493 N.E.2d 931 (1986).
In addition to filing two of the aforementioned suits, the plaintiffs in this case (except Brendon Gill and the Whitby Tenants' Association) also brought a proceeding under Article 78 of New York's C.P.L.R. There they challenged UDC's compliance with the State Environmental Quality Review Act ("SEQRA") in analyzing the environmental impact of the proposed project. See Rosenthal v. New York State Urban Dev. Corp., 110 A.D.2d 304, 494 N.Y.S.2d 700 (1st Dep't 1985), aff'd, 67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429 (1986) (consolidated with Jackson v. New York State Urban Dev. Corp.). They focus particularly on perceived problems with levels of carbon monoxide in the Times Square area.
Plaintiffs discontinued the action against three federal defendants who were named in the original complains in this case. An order dismissing the action as to those defendants was entered on July 28, 1986.
Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York, Thomas P. Greisa, Judge, that dismissed their action brought under the citizen suits provision of the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq., on the ground that the proposed amended complains failed to state a claim. Plaintiffs alleged that defendants violated requirements of the CAA relating to transportation control measures set out in New York State's implementation plan, which was adopted pursuant to CAA § 7410. In essence, plaintiffs claim that construction of the project will lead to further violations of the CAA, and they seek an injunction against construction of the project.
Plaintiffs rely in particular on § 7604(a) which provides, in pertinent part, that "any person may commence a civil action on his own behalf * * * against any person * * * [or] governmental instrumentality or agency * * * who is alleged to be in violation of * * * an emission standard or limitation under this chapter". 42 U.S.C. § 7604(a)(l)(A). "Emission standard or limitation" is defined as including "any condition or requirement under an applicable implementation plan relating to transportation control measures", § 7604(f)(3). A citizen may also commence a civil action against the administrator of the Environmental Protection Agency ("EPA") where the administrator fails to perform any nondiscretionary duty under the CAA. § 7604(a)(2).
Because implementation of the act involves a complex interplay of state and federal responsibilities, see Concerned Citizens of Bridesburg v. Envtl. Protection Agency, 836 F.2d 777, 779 (3d Cir. 1987); Connecticut v. Envtl. Protection Agency, 696 F.2d 147, 151 (2d Cir. 1982); Council of Commuter Orgs. v. Gorsuch, 683 F.2d 648, 651 (2d Cir. 1982), it is necessary to examine the procedural requirements of both the state and federal statutory environmental protection schemes and the extent to which the defendants have, insofar as the planning of the project is concerned, complied with these requirements.
SEQRA, enacted in 1975 and codified as N.Y. Envtl. Conserv. Law § 8-0101 et seq. (McKinney 1984), was designed, in part, to fill a gap left by the National Environmental Policy Act, 42 U.S.C., §§ 4322, 4332 et seq., which imposed an obligation on federal agencies to consider the environmental consequences of federally funded or approved projects. A key provision in SEQRA is the requirement that state and local agencies prepare an environmental impact statement ("EIS") on any action they propose or approve that "may have a significant effect on the environment." N.Y. Envtl. Conserv. Law § 8-0109-2. See 503 N.Y.S.2d at 303-04. The purpose of the EIS "is to provide detailed information about the effect which a proposed action is likely to have on the environment, to list the ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action." N.Y. Envtl. Conserv. Law § 8-0109-2.
The CAA was designed to prevent and control air pollution by providing "Federal financial assistance and leadership * * * for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution." 42 U.S.C. § 74Ol(a)(3),(4). The CAA amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1679 (1970), amended by Pub. L. 95-95, Title I, § 106, 91 Stat. 691 (1977), required the EPA to promulgate national ambient air quality standards ("NAAQS") for various air pollutants, including carbon monoxide. See § 7409 (National Primary and Secondary Air Quality Standards); 40 C.F.R. § 50.8 (1987); Council of Commuter Orgs. v. Gorsuch, 683 F.2d at 651. The NAAQS for carbon monoxide is "9 parts per million * * * for an 8-hour average concentration not to be exceeded more than once per year." 40 C.F.R. § 50.8(a)(1)(1987).
Section 7410(a)(1) requires that each state adopt an implementation plan ("SIP") that provides for the "implementation, maintenance, and enforcement of national primary and secondary ambient air quality standards". See Concerned Citizens of Bridesburg, 836 F.2d at 780-81; see generally 683 F.Sd at 651 (discussing SIP revision process for nonattainment areas). The administrator is required to approve or disapprove a proposed SIP within four months after it is submitted, based on criteria set out in § 7410(a)(2). Thus, the EPA "determines the ends--the standards of air quality--while the states are given the initiative and broad responsibility to achieve those ends." Concerned Citizens of Bridesburg, 836 F.2d at 779 (citation omitted).
The 1977 amendments to the CAA extended the deadline for attainment of carbon monoxide and ozone standards in certain "nonattainment states", including New York. See 42 U.S.C. § 7502(a)(2); 683 F.2d at 651. Pursuant to these amendments, "extension states" were required to submit SIP revisions containing measures stringent enough to assure attainment of the NAAQS by December 31, 1987. See § 7502(c); 683 F.2d at 651. The December 31, 1987, federal statutory deadline was in effect when the complaint leading to this appeal was filed.
In a continuing appropriations bill, Joint Resolution 395, Pub. L. No. 100-202 (Jan. 6, 1987), congress approved legislation that prohibits the EPA from imposing, prior to August 31, 1988, sanctions on areas that fail to attain the NAAQS for carbon monoxide by December 31, 1987. See generally 42 U.S.C. § 7413 (Federal enforcement procedures); Council of Commuter Orgs. v. Gorsuch, 683 F.2d at 651 (discussing treatment of "nonattainment areas" under Clean Air Act amendments of 1977). Although this amendment, in effect, extends the deadline for attainment of the NAAQS in New York City to August 31, 1988, the SIP that was in effect when plaintiffs brought this suit has not been modified and still contains a commitment that "all [carbon monoxide] hot spots will be eliminated by the end of 1987." New York State Air Quality Implementation Plan for Control of Carbon Monoxide and Hydrocarbons in New York City Metropolitan Area § 3.5.3, at 3-21 (Future Action) (revised January 1984). A "hot spot" is "any location which has been shown to have a potential to violate [the NAAQS] for carbon monoxide as of December, 1982." Id. at § 3.3.
The provisions of the SIP are crucial to this appeal because plaintiffs bringing a citizen suit "must allege a violation of a specific strategy or commitment in the SIP and describe, with some particularity, the respects in which compliance with the provision is deficient." Council of Commuter Orgs. v. Metro. Transp. Authority, 683 F.2d 663, 670 (2d Cir. 1982). See Action for Rational Transit v.v Westside Highway, 699 F.2d 614, 616 (2d Cir. 1983).
The 1984 SIP was submitted pursuant to that portion of § 7410 that allows states to include provisions for review of "indirect sources". An "indirect source" includes structures that "may attract mobile sources of pollution", 42 U.S.C. § 7410(a)(5)(C), presumably cars, buses, etc. Under an "indirect source review program", the state may provide for a review of indirect sources of air pollution and for the development of measures that will "assure, or assist in assuring," that a new or modified indirect source will not lead to nonattainment of the NAAQS or prevent the maintenance of the NAAQS. 42 U.S.C. § 7410(a) (5)(D).
In exercising its discretion under the CAA to include an indirect source review program in its SIP, the state chose to use the SEQRA EIS process as the means by which the environmental impact of an indirect source would be evaluated. The 1984 SIP, which was approved by the EPA in 1985, see 40 C.F.R. § 52.1673(a), provides that "the primary mechanism for comprehension evaluation of major projects which may have a significant impact on air quality is the environmental impact statement (EIS). EIS's are required by either the National Environmental Policy Act (NEPA), the State Environmental Quality Review Act (SEQRA), or the New York City Environmental Quality Review (CEQR)." 1984 SIP at § 3.6 (Changing Traffic Patterns). SEQRA, in turn, requires that, in preparing an EIS, agencies "choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact statement process." N.Y. Envtl. Conserv. Law § 8.0109.1 (McKinney 1984). Thus, project approval was subject to the indirect source review program that New York Voluntarily included in the 1984 SIP, which it adopted pursuant to CAA requirements. The SEQRA EIS process was the mechanism that the UDC used to evaluate the potential impact of the project on air quality.
In this case, UDC, as the lead agency for the project, see N.Y. Envtl. Conserv. Law § 8-0111.6; 6 N.Y. Comp. Code Rules & Regs. tit. 6, § 617.6, prepared a draft EIS, held public hearings, received and reviewed written and oral public comments, revised the EIS, and published a final EIS. See 6 N.Y. Comp. Code Rules & Regs. tit. 6, § 617.8 (Environmental impact statement procedures); 503 N.Y.S.2d at 304. After considering "social, economic and other factors", as well as relying on the final EIS, UDC approved the project on October 4, 1984, and set forth its findings and conclusions pursuant to SEQRA and part 617 of the New York Code of Rules and Regulations. See N.Y. State Urban Dev. Corp., Findings With Respect to 42nd Street Development Project, New York, New York, Oct. 4, 1984, at 1, 43-44 [hereinafter cited as UDC Report]. The portions of the UDC report that are most important for our purposes concern (1) existing air quality and the projected impact of the project on air quality and (2) mitigation of traffic and air quality impacts.
Under "Existing Project Area Conditions", that is, the conditions that prevailed in 1984, long before any construction was to begin, UDC found that "under adverse meteorological and traffic conditions, the [carbon monoxide] standard for the peak eight-hour period of the day (average of 9 parts per million (ppm) per hour) is exceeded at ten of the eleven project area receptor locations". UDC Report at 15-16.
Under "Project Impacts", that is, the overall effect after the project is completed, UDC concluded that "without traffic mitigations, violations of the eight-hour carbon monoxide standard of 9 ppm would occur at several locations in 1991 under peak traffic and meteorological conditions", but that with mitigation, carbon monoxide concentrations within the project area would, depending on the exact location, either (1) be below the 9 ppm standard; (2) exceed the 9 ppm standard by only de minimis amounts (i.e., 9.3 ppm); or (3) be lower than would be the case without the project. UDC Report at 26-27.
UDC made similar findings regarding impacts during project construction: without mitigation the 9 ppm standard would be exceeded in a number of project area locations during construction, but with mitigation measures, two locations at most would exceed the 9 ppm standard during temporary traffic diversion. At one of these locations, the standard would be exceeded by only de minimis amounts. UDC Report at 29-30.
Mitigation measures designed to handle the projected 1991 traffic volume within the project area were incorporated into the project plan and approved by UDC. They included (1) a traffic lay-by lane to provide standing and drop-off space for buses and taxis that now block traffic, (2) relocation of a taxi stand, (3) revised and more effectively enforced "no standing" regulations, (4) revised signal timing, and (5) additional traffic enforcement agents. UDC Report at 23.
At the conclusion of its report, under "Findings Pursuant to the State Environmental Quality Review Act", UDC concluded:
Based on the foregoing and having fully considered the FEIS and considered, determined and found the matters set forth above, UDC hereby (a) finds that all requirements of SEQRA and Part 617 have been met in preparation and consideration of the FEIS and (b) makes the following additional findings:
(1) consistent with the social, economic and other essential considerations, from among the reasonable alternatives thereto, the action to be approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable, including the effects disclosed in the Final Environmental Impact Statement; and
(2) consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigating measures which were identified as practicable.
UDC Report at 43-44. These findings, which UDC made pursuant to SEQRA's requirements, were based on the findings regarding air quality that it had made by using CAA's 9 ppm standard to measure the impact of the project on air quality and to evaluate the effectiveness of proposed mitigation measures.
On November 9, 1984, after holding public hearings, the New York City Board of Estimate expressly adopted UDC's ...