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Council of Commuter Orgs. v. Thomas

ELR Citation: 16 ELR 20927
Nos. No. 85-4128, 799 F.2d 879/25 ERC 1006/(2d Cir., 08/28/1986)

The court holds that the Environmental Protection Agency (EPA) was within its authority when it determined that a state can meet the "basic transportation needs" requirement in Clean Air Act §110(c)(5) without improving its mass transit system if commuters diverted from their cars by the required transportation control measures can be absorbed into the transit system. Clean Air Act §110(c)(5) requires that a state that elects to remove provisions of its state implementation plan (SIP) calling for the imposition of bridge tolls to curtail air pollution must revise its SIP to undertake new obligations, including comprehensive measures to meet "basic transportation needs." Petitioners challenge EPA's approval of the 1982 revision to New York's SIP, in which the state, in view of EPA's 1980 proposed policy guidance, backed away from its earlier proposals to satisfy §110(c)(5) by instituting a series of mass transit improvements. The court first holds that EPA's approval of New York's SIP revision was within its authority. EPA was entitled to conclude that "basic transportation needs" are met when the mobility of riders diverted from automobiles by transportation control measures is maintained. Although the court observes thatit may be more appropriate to read the statute to require some improvement of transit systems to meet "basic transportation needs," the ambiguity of both the language of §110(c)(5) and the legislative history compels the court to accept EPA's interpretation.

The court holds that New York's SIP revision is valid under EPA's interpretation of the statute. Petitioners have failed to show that EPA erred in concluding that the computerized traffic control system for New York City's business district is the only proposed transportation control measure with the potential for diverting automobile riders and that the city's transit system can accommodate the riders that will be diverted. The court notes that since New York can meet its "basic transportation needs" without adopting transit improvements, the conditions the court imposed in an earlier decision for EPA's assessment of such improvements no longer apply. The court also holds that the equivalent emission reduction requirement in §110(c)(5) was met in New York's SIP revision. Transportation control measures in the SIP were shown to reduce emissions by several times the reduction that bridge tolls would have achieved. Finally, the court holds that none of petitioners' claims that the SIP revision was deficient for reasons other than compliance with §110(c)(5) has merit. New York has supplied sufficient detail for its program to attain the ozone and carbon monoxide standards, the use of modelling to project results is appropriate, New York has committed itself to adequate monitoring and reporting, the revision provides adequate funding and personnel, EPA's tardiness in approving the SIP revision is not a basis for granting a petition for review of action that satisfies the substantive requirements of the Clean Air Act, and the SIP revision satisfies the requirement imposed on nonattainment areas to make "reasonable further progress" toward meeting national air quality standards.

[An earlier opinion in this controversy appears at 12 ELR 20825.]

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

Counsel for Respondents
Susan L. Smith
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Intervenor
David R. Wooley, Ass't Attorney General
Environmental Protection Bureau
Two World Trade Ctr., Albany NY 10047
(518) 474-7330

Before Van Graafeiland and Miller, JJ.