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Friends of the Earth v. Carey

ELR Citation: 7 ELR 20177
Nos. Nos. 75-7497, 76-3054, 552 F.2d 25/9 ERC 1641/(2d Cir., 01/18/1977) lower court decision vacated

The Second Circuit vacates a lower court decision that compelling New York City to implement and enforce transportation control strategies contained in the New York implementation plan by way of a judicial order in a citizen suit under §304 of the Clean Air Act would violate the city's rights under the Tenth Amendment. The court grants a writ of mandamus directing the district court to reinstate its earlier order requiring the city to enforce reductions in business district parking, a selective ban on taxicab cruising, tolls on the East and Harlem River bridges, and night-time freight movement programs. The transportation controls at issue were developed by the city, promulgated by the state as part of its implementation plan, and duly approved by the Environmental Protection Agency (EPA). The strategies therefore became binding and enforceable against both state and local officials through a §304 citizen suit. Although the city has standing to raise Tenth Amendment objections to enforcement of the plan, it has waived its right to assert those claims as defenses in an enforcement action under §304 because they could have been, but were not, raised in a §307 petition for review of EPA's approval of the plan within 30 days after it occurred. Even if the city had not waived these claims, however, the district court's conclusion that the city was not obligated to enforce the plan would still be erroneous. Unlike Brown v. EPA, 521 F.2d 827, 5 ELR 20546 (9th Cir. 1975), cert. granted, 44 U.S.L.W. 3681 (June 1, 1976), the implementation plan in this case was developed and promulgated by the city and state. This is clearly distinguishable from Brown in which EPA sought to compel a state to implement and enforce a plan formulated by EPA without the state's participation or consent.

Enforcement of the city's obligations under the plan represents thus neither an interference with integral local governmental functions nor a usurpation of state or city decision making within the meaning of National League of Cities v. Usery, 426 U.S. 831 (1976).The case is remanded to the district court for reinstatement of partial summary judgment for plaintiffs.

The Second Circuit's earlier ruling that the district court erred in initially denying citized enforcement of the plan under §304 is printed at 6 ELR 20488.

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

Counsel for Defendants-Appellees City of New York
W. Bernard Richland, Corporation Counsel
Alexander Gigante, Jr.
Municipal Bldg.
New York NY 10007
(212) 566-3929

Counsel for Defendant Rusell Train
Peter R. Taft, Asst. Attorney General
Edmund B. Clark
Neil T. Proto
Michael D. Graves
Department of Justice
Washington DC 20530
(202) 737-8200

For himself, Timbers & Meskill, JJ.