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COHEN v. PRICE COMMN.

January 24, 1972

Myron COHEN and Helen Freedman on behalf of themselves, and all others similarly situated, Plaintiffs,
v.
PRICE COMMISSION et al., Defendants


Edward Weinfeld, District Judge.


The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

Plaintiffs, having commenced this action to declare void, upon various specified grounds an order of the defendant Price Commission (hereafter Commission) which authorized a five-cent fare increase on subway and bus lines, toll increases on bridges and tunnels, and increases for parking charges, move to enjoin the other defendants, public benefit agencies, during the pendency of this action, from collecting fares and tolls in excess of those collected on December 31, 1971. The plaintiffs have confined their instant motion for preliminary injunctive relief to the sole ground that the order of the Commission is void for non-compliance with the requirements of the National Environmental Policy Act of 1969 (NEPA), *fn1" its policies and goals. They acknowledge that, as to the other grounds of attack upon the Commission's order, they have not submitted at this time sufficient evidence to sustain their plea for injunctive relief.

 The main thrust of plaintiffs' attack is that the authorized increase in subway and bus fare will substantially increase motor vehicle traffic on the streets of New York City and significantly accelerate the level of air pollution, resulting in serious harm to the health and well being of those who live and work in New York City. The plaintiffs charge, upon information and belief, that none of these environmental matters were presented to, or considered by, the Commission, which, they contend, it was obligated to do under the Act.

 The application for the authorized increases was filed with the Commission on December 27, 1971, and essentially was based upon economic factors -- losses and heavy deficits incurred in the operation of New York City transit facilities, the prospect of still further losses, so that if relief were not granted, serious hardship would ensue to "the six and one half million daily riders who use Transit Authority and [other] mass transportation facilities and to the more than 300,000 daily commuters using MTA [Metropolitan Transit Authority] facilities." *fn2" The application was detailed and extensive, setting forth significant information as to revenues, losses, operations and alternative sources of funds for maintaining subway and bus fares as low as possible, including the proposal to help subsidize mass transit by the revenues derived from increased tolls on bridges and tunnels and charges for parking facilities. The information presented to the Commission indicated a projected operating deficit for the calendar year 1972 of $177.5 million, exclusive of an anticipated wage increase for transit employees, then the subject of unresolved collective bargaining negotiations. It was estimated that a 5.5% increase in hourly rates would add $30.3 million to operating costs, thereby substantially increasing the projected deficit. The fare increase, if granted, was anticipated to yield $85 million per year, still leaving a wide gap to be made up by other sources. The application concluded:

 
"It is urgently necessary that the approval and exception herein requested be granted at the earliest possible date. As indicated above, the Transit Authority has been operating for a long period at a substantial deficit. Its cash position is critical, and it would be unable to meet payrolls in January 1972 unless relief is granted. Furthermore, any delay in collecting the increased fares and tolls will result in a loss in revenue of approximately $2 1/2 million a week. A delay would therefore seriously handicap the Transit Authority's ability to operate at a thirty-five cents' fare." *fn3"

 On January 4, 1972, the Commission, after consideration of the application, granted approval of the requested increases. It noted that its approval of the subway and bus increases was "based on the fact that the subways and busses have been operating at loss and that a loss is projected for the calendar year 1972." *fn4" The Commission further specified that its approval was made on the basis of (1) the presumed validity of the supporting data, and (2) the Commission's consideration of other relevant factors. In authorizing the bridge and tunnel increases, the Commission determined that "the continued operation of a mass transit system at subsidized fares helps reduce traffic congestion, thus benefiting users of bridges and tunnels, and lessens air pollution . . . ." *fn5"

 The authorized increases were put into effect on January 4. Plaintiffs filed this suit on January 6 and sought a temporary restraining order which, however, was denied by Judge Pierce. Thereafter the instant motion for preliminary injunctive relief was argued before this court on January 11.

 The hard core of plaintiffs' claim here under consideration is that the Commission's action authorizing the fare increase will effect a loss of passengers on mass transit lines, a percentage of whom will resort to motor vehicles to reach their destination, with the result that an additional 21,000 motor vehicles will come into the central business district of New York City each day, *fn6" thereby increasing air pollution to the extent that the federally mandated safe air standards, which must be met by 1975, may be jeopardized -- that the Commission's order is void in that it failed to include a detailed statement on the environmental impact of the proposed fare and toll increases, failed to consult or obtain the view of other federal agencies, and otherwise failed to comply with the mandate of NEPA.

 In order to obtain the drastic preliminary relief, which, if granted at this juncture of the litigation, would prevent the defendant authorities from collecting the authorized increases and thus yield to plaintiffs the ultimate and permanent relief to which they would be entitled only after a trial upon the merits, they bear a heavy burden. It is familiar teaching that a preliminay injunction should be granted only upon a clear showing by a party seeking the extraordinary remedy (1) of probable success upon a trial on the merits, and (2) likely irreparable injury to him unless the injunction is granted, or (3) if his showing of probable success is limited but he raises substantial and difficult issues meriting further inquiry, that the harm to him outweighs the injury to others if it is denied. *fn7" As to none of these elements have the plaintiffs made the necessary showing.

 The first, a clear showing of probable ultimate success necessarily rests upon plaintiffs' contention that the Commission was bound to conform to the requirements of the Environmental Policy Act. The Commission, appointed by the President, functions under the Economic Stabilization Act of 1970, *fn8" as amended in 1971, *fn9" which authorizes the President to issue such orders and regulations as he deems appropriate to stabilize prices, rents, wages and salaries. Its central purpose, as the Act itself makes clear, is to stabilize the economy, reduce inflation, minimize unemployment, protect the purchasing power of the dollar and improve the nation's competitive position in world trade. *fn10" And the Act emphasizes that "the adjustments necessary to carry out this program require prompt judgments and actions by the executive branch of the Government. The President is in a position to implement promptly and effectively the program authorized by this title." *fn11" The President's functions to carry out the purposes of the Act were delegated to the Price Commission. There can be no question that if the purposes of the Economic Stabilization Act are to be achieved, the President or his delegated representatives must be free to act with promptness and dispatch.

 NEPA, on the other hand, begins with a congressional declaration of long range national environmental policy -- ". . . the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." *fn12"

 Plaintiff, in urging that the Commission is subject to NEPA, relies upon its "action-forcing" provision, *fn13" which provides, inter alia:

 
"The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this ...

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