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

Citation: 12 ELR 20784
No. No. 81-7804, 683 F.2d 663/17 ERC 1910/(2d Cir., 06/16/1982) Dismissal aff'd

The court affirms the district court's dismissal, 12 ELR 20342, of a citizen suit to compel Environmental Protection Agency (EPA) approval and federal, state, and local enforcement of portions of the New York state implementation plan (SIP) for New York City. The court rules that appellants' action for enforcement of SIP provisions promulgated in 1973 became moot in December 1981 when those provisions were formally deleted from the SIP. The court then holds that the district court properly dismissed as premature the action to compel state and local enforcement of provisions of the 1981 SIP. The complaint preceded the end of the 60-day notice period required by § 304(b) of the Clean Air Act. The district court did not err in declining to hold the complaint in abeyance until the 60-day period passed, because the complaint is too vague to provide adequate notice. The court also rules that allegations concerning state and local violations of SIP provisions conditionally approved in 1980 should have been addressed by the district court, but would properly have been dismissed as too vague to satisfy the Clean Air Act's requirement that citizen suits allege violation of a specific SIP requirement. Next, the court rules that the action to compel EPA to issue notices of violation (NOVs) was properly dismissed since EPA may not be compelled to enforce lapsed SIP provisions, to act before the 60-day notice period has passed, or to respond to vaguely pleaded assertions of violations. Moreover, EPA's duty to issue an NOV is only non-discretionary after the Agency has determined that a violation exists, which was not the case in the instant action. Finally, the court upholds the dismissal of claims against an interstate planning agency. While the court agrees with the district court that the agency is immune from certain suits under the Eleventh Amendment, the court notes that it does not shield the agency from injunctions to secure compliance with federal law.

[For a related case, see 12 ELR 20825 — Ed.]

Counsel for Appellants
David M. Corwin, William Hoppen
Jillson, Bedford & Hoppen
Suite 2104, 250 Broadway, New York NY 10007-2561
(202) 962-3332

Counsel for Appellees
Francis P. Barron, David Boies
Cravath, Swaine & Moore
One Chase Manhattan Plaza, New York NY 10005
(212) 422-3000

Gaines Gwathmey III, Richard N. Papper; John S. Martin Jr., U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(212) 791-0055

John Proudfit; Robert Abrams, Attorney General
Department of Law, Two World Trade Ctr., New York NY 10047
(212) 488-7490

Marjorie Bornes, Ronald E. Sternberg; Frederick A. O. Schwarz Jr., Corporation Counsel
Municipal Bldg., New York NY 10007
(212) 566-3929

Newman, J. joined by Lumbard and Friendly, JJ.