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Council of Commuter Orgs. v. Metropolitan Transp. Auth.

Citation: 12 ELR 20342
No. No. 80 Civ. 6815 (MP), 524 F. Supp. 90/17 ERC 1214/(S.D.N.Y., 10/13/1981)

The district court dismisses a citizen suit under the Clean Air Act alleging noncompliance with and the inadequacy of the New York state implementation plan (SIP). Initially, the court dismisses plaintiffs' claims that the state defendants violated the 1973 SIP. The 1979 revision of the SIP, approved by the Environmental Protection Agency (EPA) in 1981, renders such claims moot. For the same reason plaintiffs' contention that the EPA Administrator failed to take action with regard to the 1979 SIP must also be dismissed. The court lacks authority to consider whether EPA should have taken enforcement actions against the state for violations of the 1973 SIP; the Agency's findings that such violations occurred were discretionary and are thus not reviewable under § 304 of the Act. The court rules that the § 304(b)(1)(A) claims against the nonfederal defendants for failure to enforce the 1979 SIP are premature since the 60-day grace period for EPA action has not elapsed and the allegations are too vague. In addition, plaintiffs' challenges to the content of the 1979 SIP and related regulations are reviewable only in the court of appeals, and the Administrator's failure to withhold federal funds from the state for failure to revise the SIP is not reviewable by the court since the Administrator was not under a mandatory duty to withhold such funds.

Counsel for Plaintiffs
William Hoppen
Jillson, Bedford & Hoppen
Suite 3017, 61 Broadway, New York NY 10006
(212) 962-3332

Counsel for Defendants
John S. Martin Jr., Gaines Gwathmey III, Ass't U.S. Attorneys
One St. Andrew's Plaza, New York NY 10007
(212) 791-0055

David Boies, Francis P. Barron, Kevan R. Cleary
Cravath, Swain & Moore
One Chase Manhattan Plaza, New York NY 10005
(212) 422-3000

Robert Abrams, Attorney General; John G. Proudfit
Department of Law, 2 World Trade Center, New York NY 10047
(212) 488-3320

Allen G. Schwartz, Corp. Counsel; John C. Brennan
Municipal Bldg., New York NY 10007
(212) 566-3929