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Atlantic Terminal Urban Renewal Area Coalition v. New York City Dep't of Envtl. Protection

Citation: 19 ELR 21032
No. No. 87 Civ. 4242 (MEL), 705 F. Supp. 988/29 ERC 1203/(S.D.N.Y., 02/07/1989) Motion to amend complaint denied

The court denies an environmental group's motion to amend their complaint in a Clean Air Act (CAA) challenge to a Brooklyn development project to add three claims and the Department of Commerce as a defendant. The court first holds that the U.S. Environmental Protection Agency's (EPA's) duty under CAA §113(a)(1) to make a finding when informed of alleged violations of state implementation plans (SIPs) is discretionary and denies leave to add the proposed claim against EPA. The statutory language does not specify such a duty and a mandatory duty to investigate would result in efficient use of limited Agency resources and limit the range of available remedies. Additionally, decisions to take enforcement action are generally discretionary unless congressional intent to the contrary is shown. Plaintiffs also are not without a remedy because they have brought this action against the responsible New York City agencies for alleged violations of the New York State SIP. The court next holds that the Department of Commerce's grant award for the demolition of existing buildings on the project site does not constitute support of the project under CAA §176 and thus Commerce is not responsible for the environmental analysis or impact of the overall development project. The only activity supported by Commerce is the site clearance and there is no allegation that the demolition does not conform to New York's SIP. Consequently, the court denies the motion to add the two claims against Commerce alleging CAA and National Environmental Policy Act (NEPA) violations. The court next holds that plaintiffs may not amend their complaint to add a claim charging the Department of Housing and Urban Development (HUD) with NEPA violations because HUD had delegated its substantive environmental responsibilities to New York City, the Urban Development Action Grant (UDAG) applicant for the Brooklyn project. The Housing and Community Development Act allows HUD to relinquish its NEPA responsibilities to UDAG applicants. The court finally defers ruling on plaintiffs' motion to add a claim alleging that the New York City defendants violated NEPA pending a showing by plaintiffs that there is sound reason to believe that they will prevail on the claim.

[Related cases are published at 19 ELR 20290, 20295, and 21037.]

Counsel for Plaintiffs
Edward Copeland, Elizabeth St. Clair
Rabinowitz, Boudin, Standard, Krinsky & Lieberman
740 Broadway at Astor Place, Fifth Fl., New York NY 10003-9518
(212) 254-1111

Counsel for Defendants
Peter L. Zimroth, Corporation Counsel;Jeffrey Schanback, John De Angeli, Ass't Corporation Counsel
City of New York, 100 Church St., New York NY 10007
(212) 566-4515

Benito Romano, Acting U.S. Attorney; Richard W. Mark, Richard M. Schwartz, Ass't U.S. Attorneys
One St. Andrews Plaza, New York NY 10007
(212) 791-0053