Delaware Valley Citizens' Council for Clean Air v. Commonwealth

Nos. 76-2068; 77-619 (E.D. Pa. August 20, 1981)

The district court denies defendants' motion to stay implementation of an auto emissions inspection and maintenance program pending appeal of the court's denial, 11 ELR 20954, of defendants' motion to modify the consent decree. Defendants have not demonstrated (1) a likelihood of success on appeal, (2) that they will suffer irreparable injury if the stay is denied, (3) that plaintiffs will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay.

Counsel are listed at 11 ELR 20953.

[11 ELR 20956]

Bechtle, J.:

Order

AND NOW, TO WIT, this 20th day of August, 1981, after consideration of defendants' motion for stay pending appeal and plaintiff DVCCCA's memorandum in opposition, IT IS ORDERED that defendants' motion, brought pursuant to FED. R. CIV. P. 62, is denied.

A party seeking a stay pending appeal has the burden of showing "(1) that it will likely prevail on the merits of the appeal, (2) that it will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay." Halderman v. Pennhurst State School and Hospital, 451 F. Supp. 233, 235 (E.D. Pa. 1978).

A motion to modify a consent decree is addressed to the sound discretion of the Court and will only be disturbed on review for an abuse of discretion. Cf. Girard Trust Bank v. Martin, 557 F.2d 386, 390 (3d Cir.), cert. denied, 434 U.S. 985 (1977). A party violating a consent decree may also be subject to the power of contempt in order for the Court to protect its judgments. Interdynamics, Inc. & Smith Industries, Ltd. v. Firma Wolf, et al., No. 80-2254, slip op. at 7-8 (3d Cir. June 30, 1981). Defendants have not demonstrated a likelihood of success upon appeal. The implementation of an "I/M program" which was agreed to in the August 30, 1978 consent decree, has already been delayed twice on application of the Commonwealth and approved by the Court on March 7, 1980 and June 16, 1981, respectively. Further delay will only defeat the purposes of the consent decree. Other states, including New Jersey and California, have already implemented "I/M programs" similar to that directed by the Court on June 16, 1981. The proposed modification seeking further delay in order to use a "computer analyzer" furthermore lacks merit because other states now effectively use the existing type of analyzers, nor has it been shown that comptuer analyzers would be constructed and available for use by January 1, 1983.

Second, the Commonwealth has failed to show irreparable harm because the implementation of this program has been mandated since the signing of the consent decree in 1978 and the steps presently in progress are necessary for the full implementation of the program.

Third, the DVCCCA plaintiffs will be harmed because a delay in the program will result in further dangerous levels of unclear air in the affected areas.

Finally, the public interest will not be served because a stay would result in still further delay and postponement of the important goals of the decree that has as its object the improvement of the air quality and prompt reduction of air pollutants, all of which was long ago agreed to be achieved by its parties.