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Council of Commuter Orgs. v. Gorsuch

Citation: 12 ELR 20825
No. No. 81-4210, 683 F.2d 648/17 ERC 1897/(2d Cir., 06/16/1982)

The court upholds the Environmental Protection Agency's (EPA's) belated approval of New York City's incomplete public transportation program, but reinstates the moratorium on new construction or modification of stationary sources of air pollution pending final approval of a complete Part D state implementation plan (SIP) revision. The court first rules that EPA fully complied with the Administrative Procedure Act in approving the transit plan after it had initially proposed disapproval. The court next rules that in approving New York's plan defining its basic transportation needs, EPA did not violate its statutory responsibility to ensure that the state plan was consistent with the Clean Air Act, because it only approved the plan after determining that it was in accord with EPA policy. In addition, EPA acted within its discretion in allowing New York to delay submission of some plan details until July 1, 1982, since the language of the statute and the legislative history of §110(c)(5)(B)(i) suggest that Congress envisioned a two-stage submittal process. The court next rules that EPA did not err in approving the New York plan even though the state abandoned the fare stability strategy it had relied on most heavily to satisfy the requirement in §110(c)(5)(B) that the transit improvement substituted for bridge tolls provide for emission reductions equivalent to those which would have resulted from the tolls. Other strategies mentioned in the plan might be equally effective and the detailed information required to answer that question should be included in the forthcoming second stage SIP submittal. The court next castigates EPA for delaying action on the transit plan for three years after the statutory deadline, but holds that actions to compel compliance with such deadlines fall within the jurisdiction of the district courts. The court also rules that EDA did not abuse its discretion in evaluating the adequacy of the local agency support and funding for the proposed mass transit program. The court, however, vacates EPA's order lifting the moratorium on construction of major new sources as a consequence of its conditional approval of the non-transit portions of the Part D SIP revision

[A related decision is reported at 12 ELR 20784 — Ed.]

Counsel for Petitioners
William Hoppen
Jillson, Bedford & Hoppen
Suite 2104, 250 Broadway, New York NY 10007-2561
(212) 962-3332

Counsel for Respondents
Lawrence R. Liebesman, Donald W. Stever Jr.; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5383

Christian Kaneen
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

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