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Wilder v. Thomas

Citation: 17 ELR 20978
No. No. 85 Civ. 8356, 659 F. Supp. 1500/26 ERC 1550/(S.D.N.Y., 05/13/1987)

The court holds that the plaintiffs, who sued state and local officials under the Clean Air Act's citizen suit provision to challenge a proposed building project in midtown Manhattan, failed to state a valid claim. The court first holds that plaintiffs' claim that the project would prevent the elimination of carbon monoxide "hot spots," as required by the New York state implementation plan (SIP), is legally deficient. The SIP's requirement that hot spots be eliminated constitutes an air quality standard rather than an emission standard, and only violations of emission standards, as defined in Clean Air Act § 304(f), are subject to challenge by citizen suits under § 304. Also, this claim fails to take into account that the SIP contains a remedy for violations of the hot spots requirement by providing that the city commit to mitigating measures where necessary to avoid a violation.

The court holds that plaintiffs' claim that local officials failed to perform their duty under the SIP to conduct a "SIP review" of a project prior to approval of the environmental impact statement (EIS) is invalid because there is no requirement in the New York SIP that such a review take place. The court holds that plaintiffs' claim that defendants violated the SIP's requirement that defendants commit to the implementation of effective mitigation measures is inadequate. The actual language of the SIP indicates that the city is already committed to the implementation of mitigation measures, and no additional act of commitment by the city is necessary. Plaintiffs do not allege that the city repudiated or violated its commitment. Nor do they allege that this commitment is related to an emission standard subject to challenge by a citizen suit. Although plaintiffs do allege that the mitigation measures adopted by the city are ineffective, this allegation is not specific enough to be legally sufficient. Plaintiffs also contend that the city authorities have no intention of carrying out the adopted mitigation measures. However, the SIP does not require the city to implement any particular set of measures, and the adoption of alternative measures would be permissible. Plaintiffs further argue that the mitigation measures adopted by the state as part of the EIS process are ineffective. But this issue was adjudicated in a previous state court case, and plaintiffs are estopped from relitigating the question.

The court holds that plaintiffs' claim that defendants violated a provision in the SIP that requires the state to make annual computations of emissions reductions and prepare graphic representations of certain of the data is also inadequate. The state did produce computations for all the years in question. Although these computations did not include separate calculations for each individual control measure, the SIP does not require such individual calculations. And while plaintiffs correctly assert that the required graphs were not prepared for every year, this assertion alone cannot support a citizen suit because it does not pertain to an emission standard. The court notes that questions pertaining to the technical details concerning kinds of data included in such reports are best left to the Environmental Protection Agency.

The court holds that plaintiffs' next claim, that the annual report violates the SIP by failing to direct special attention to the midtown Manhattan area, fails to state a valid cause of action. Plaintiffs fail to make clear to which annual report they refer. They also fail to allege that the reporting requirement relates to an emission standard, and the court holds that it does not. Plaintiffs argue that the defendants failed to assemble adequate materials for the EIS, on which the annual report would be based. However, the sufficiency of the EIS was already litigated in the state court action.

The court also holds inadequate plaintiffs' claim that the defendants could not give mitigation measures in the midtown Manhattan area the special attention required by the SIP because they had produced inadequate computations of emission reductions in the past. Defendants' violation, if any, is not subject to a citizen suit under the Clean Air Act. The question of the adequacy of mitigation measures is more appropriately raised under the section of the SIP pertaining to the city's commitment to effective measures.

Counsel for Plaintiff
Norman Dorsen
LeBeouf, Lamb, Leiby & MacRae
520 Madison Ave., New York NY 10022
(212) 715-8000

Counsel for Defendants
Rudolph W. Giuliani, U.S. Attorney
One St. Andrews Plaza, New York NY 10007
(212) 791-0055

Frederick A.O. Schwartz Jr.
Corporation Counsel, City of New York
100 Church St., New York NY 10007
(718) 566-3929