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Natural Resources Defense Council v. New York State Dep't of Envtl. Conservation

ELR Citation: 18 ELR 20106
Nos. No. 87 Civ. 0505 (MEL), 668 F. Supp. 848/26 ERC 1604/(S.D.N.Y., 09/09/1987)

The court holds that the state of New York is liable for failing to implement in a timely manner the ozone control strategies of New York's state implementation plan (SIP) under the Clean Air Act (CAA), and enters an order establishing mandatory enforcement dates. The court first holds that the state's failure to adhere to the SIP's implementation schedule mandates a finding of liability and judicial enforcement of the requirements of the SIP. Reasons for the state's noncompliance, such as unavoidable technical difficulties and obstruction by other governmental agencies, are irrelevant. In setting compliance dates for the state's implementation of the SIP's gasoline vapor recovery strategy, the court adopts the dates urged by plaintiff nonprofit environmental group, which are nine months sooner than those proposed by the state. Although requiring gasoline service stations to install a device on gas pump nozzles to control fumes will result in increased costs, Congress has established that the public health is a greater priority than monetary savings. Further, the strategy is feasible and not unreasonably time-consuming or burdensome. The court holds that a federal judicial order establishing compliance dates need not be promulgated, submitted for public comment, or submitted to the state administrative body for approval. The order does not constitute an infringement of state sovereignty, and for the court to defer to state administrative rulemaking procedures or expertise would be inconsistent with the goals and mandates of the CAA. The possibility that judicially ordered implementation dates will pressure the state to petition the Environmental Protection Agency to remove the gasoline vapor recovery strategy from the SIP is purely speculative, and does not affect the court's responsibility to enforce the SIP as it is. In setting compliance dates for the architectural coatings, consumer and commercial solvents, and auto refinishing strategies, the court holds that its scheduling order must contain final compliance dates in addition to dates for interim steps. CAA §110(a)(2)(B) specifies that each SIP shall include timetables for compliance with emission limitations, and the New York SIP contains final deadlines for this reason. Moreover, compliance is more likely to be achieved if final dates are set. The court establishes specific interim and final compliance dates for each of the three strategies. The court declines to include a liquidated penalties clause in its order or to require that the SIP be revised if its emission reduction strategies are determined to be inadequate. However, the court requires the state to file quarterly compliance progress reports.

[A related decision from New Jersey is published at 18 ELR 20036.]

Counsel for Plaintiffs
Donald S. Strait, Eric A. Goldstein
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Defendants
Robert Abrams, Attorney General; James A. Sevinsky, David R. Wooley, Helene G. Goldberger
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330