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Friends of the Earth v. Carey

ELR Citation: 6 ELR 20488
Nos. No. 75-7497, 535 F.2d 165/8 ERC 1933/(2d Cir., 04/26/1976) summary judgment rulings

The Court of Appeals directs a lower court to grant partial summary judgment for plaintiffs in a citizens suit under §304 of the Clean Air Act seeking enforcement of approved transportation control strategies for the New York City area contained in the New York state air quality implementation plan. The failure of city and state officials to enforce these strategies has resulted in ambient carbon monoxide levels five times greater than the primary health-related standard set pursuant to the statute. The district court erred in not immediately issuing such orders as are necessary to enforce reductions in business district parking, a selective ban of taxicab cruising, tolls on the East and Harlem River bridges, and night-time freight movement that the state and city were admittedly legally required to enforce more than a year ago. Continuing discussions between EPA and the state over the mandated strategies cannot serve as a justification for barring a citizen suit seeking judicial enforcement of the plan's expressed provisions. In reiying upon the negotiations as a basis for deferring enforcement, the district court in effect granted a de facto revision in the state implementation plan beyond that permitted by Congress under §110 of the Act. The court also holds that plaintiffs were not required to join EPA as an indispensable party, and that the 60-day notice given the state prior to filing the suit constituted adequate notice to the New York City Transit Authority of plaintiffs' intent to challenge the validity of the 1975 subway fare increase. However, the court affirms the lower court's conclusion that it lacked jurisdiction to enjoin the fare increase because the stabilization of transit fares is not an expressed strategy of the state's implementation plan, and is therefore not susceptible to challenge in a suit under §304(a)(1). The court also orders the district court to hold further hearings to determine whether defendants are in default in carrying out the remaining strategies in the implementation plan, and, if so, to take whatever action is necessary to enforce those strategies. The court further directs that the case be given priority on remand, and that if the district judge's schedule precludes him from handling it promptly, the case be reassigned to another judge.

Counsel for Plaintiffs-Appellants
David Schoenbrod
Ross Sandler
Natural Resources Defense Council
15 West 44th St.
New York NY 10036
(212) 869-0150

Counsel for Defendant-Appellee City of New York
Alexander Gigante, Jr.
Nina G. Goldstein
Isaac Klepfish
Office of Corporation Counsel
Municipal Bldg.
New York NY 10007
(212) 566-3929

Counsel for Defendant-Appellee New York City Transit Authority
James P. McMahon
Stuart Riedel
Nancy A. Serventi
Terrence J. Nolan
370 Jay St.
Brooklyn NY
(212) 330-3000

For himself, Timbers & Meskill, JJ.