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Atlantic Terminal Urban Renewal Area Coalition v. New York City Dep't of Envtl. Protection

Citation: 19 ELR 20290
No. No. 87 Civ. 4242 (MEL), 697 F. Supp. 666/29 ERC 1635/(S.D.N.Y., 09/29/1988) HUD's, City's motions to dismiss denied

The court holds that the United States Department of Housing and Urban Development (HUD) may have violated Clean Air Act (CAA) § 176(c) by failing to monitor the CAA compliance of a development project in Brooklyn tentatively scheduled to receive HUD grant money. CAA § 176(c) states that no federal agency shall provide assistance for any activity that does not conform to an applicable state implementation plan. Plaintiffs challenge the proposed development project on the grounds that it would violate the national ambient air quality standard for carbon monoxide by increasing traffic in the area. The court first rules that HUD's duties under § 176(c) are delegable to grant applicants, in this case the City of New York, so that in general HUD has no legal responsibility for whether the applicant complies with the Act. However, the court holds that despite this delegation of responsibility, HUD's obligation to monitor the project was triggered by a letter from the Environmental Protection Agency notifying HUD that the project may violate federal regulations. Moreover, the court suggests that HUD may not be able to relinquish its responsibility under § 176(c) until the City certifies that it has complied with the applicable environmental requirements.

The court next holds that plaintiffs' claim that New York City violated § 176(c) by attempting to secure federal grant money for a project that would not comply with the CAA is ripe. Although the grant application process is not complete and HUD has not yet released any funds, the environmental impact statement for the project is final and HUD has preliminarily approved the grant. However, further action on plaintiffs' claim against the City is stayed until the application process has been completed and HUD approves or denies a release of funds.

[A related opinion is published at 19 ELR 20295.]

Counsel for Plaintiffs
Edward Copeland
Rabinowitz, Boudin, Standard, Krinsky & Lieberman
740 Broadway at Astor Place, 5th Fl., New York NY 10003-9518
(212) 254-1111

Counsel for Defendants
Richard W. Mark, Mary Ellen Kris, Ass't U.S. Attorneys
One St. Andrews Plaza, New York NY 10007
(212) 791-0053