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Friends of Earth v. U.S. Environmental Protection Agency and Nelson Rockefeller

decided: July 1, 1974.

FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, THE INSTITUTE FOR PUBLIC TRANSPORTATION, THE NEW JERSEY PUBLIC INTEREST RESEARCH GROUP, NEW YORK CITY CLEAN AIR CAMPAIGN, INC., ET AL., PETITIONERS,
v.
THE U.S. ENVIRONMENTAL PROTECTION AGENCY AND NELSON ROCKEFELLER, IN HIS CAPACITY AS GOVERNOR OF NEW YORK, RESPONDENTS



Petition to review a decision of the Administrator of the Environmental Protection Agency which approved for purposes of the Clean Air Act the New York Metropolitan Area Air Quality Implementation Plan dealing with transportation controls. Petition granted in part; denied in part.

Lumbard and Hays, Circuit Judges, and Jameson, District Judge.*fn*

Author: Lumbard

LUMBARD, Circuit Judge:

Pursuant to § 307 (b) (1) of the Clean Air Act, 42 U.S.C. § 1857h-5(b) (1), petitioners, a group of environmental and public interest organizations concerned with the quality of New York's air, ask this court to review the approval of New York's transportation control plan for the New York City metropolitian area by the Administrator of the Environmental Protection Agency (EPA). We grant review in part and deny review in part.

I.

By enacting the Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676, Congress amended the Clean Air Act, 42 U.S.C. §§ 1857-58a, to require that states meet national standards for air quality within a few years. Briefly stated, under § 109 of the Act, 42 U.S.C. § 1857c-4, the Administrator is to promulgate national primary ambient air quality standards and national secondary ambient air quality standards. Primary standards are for protection of the public health, while secondary standards are for protection of the public welfare. On April 30, 1971, the Administrator promulgated primary standards for six air pollutants -- particulate matter, sulfur oxides, nitrogen dioxide, carbon monoxide, hydrocarbons, and photochemical oxidants. Under § 110 of the Act, 42 U.S.C. § 1857c-5, the states after notice and public hearings were to adopt and submit to the Administrator, within nine months after promulgation of an air quality standard, a plan to implement the standard. Primary standards were to be implemented as expeditiously as possible but in any case within three years of the Administrator's approval of the plan; secondary standards were to be implemented within a reasonable time. The Administrator can extend the period for meeting a primary standard by two years, upon application of the governor of the state, if certain sources of emissions are unable to comply with the requirement because necessary technology or alternatives are not available and if the state has considered and applied other reasonably available alternative means of achieving the standard and has justifiably concluded that the standard cannot be implemented in three years. If the state fails to submit a plan meeting the requirements of the Act, the Administrator is empowered to prepare and promulgate his own implementation plan for the state.

At issue here is New York's plan to control transportation within the New York City metropolitian area*fn1 as part of its effort to meet the primary standards for carbon monoxide, hydrocarbons, and photochemical oxidants. According to the implementation plan, motor vehicles are responsible for roughly 95 percent of the carbon monoxide emissions, 65 percent of the hydrocarbons emissions, and 50 percent of the photochemical oxidants. The controls on new automobile emissions mandated by § 202 of the Act, 42 U.S.C. § 1857f-1, will only achieve about 40 percent of the reduction in pollutants necessary to fulfill the EPA's primary standards.*fn2 Therefore, New York's implementation plan had to consider other methods of limiting or dispersing automobile emissions if the standards were to be met.

Earlier this year, we considered a challenge to the principal New York implementation plan, Natural Resources Defense Council, Inc. v. EPA, 494 F.2d 519 (2d Cir. 1974). That plan did not include transportation control measures because the EPA had advised New York and several other states that transportation control plans did not have to be filed until February 15, 1973, and did not have to meet the primary standards until May 31, 1977, allowing for the full two-year extension permissible under § 110. The reason for this advice was that the EPA and the states lacked practical experience in developing transportation control measures that would meet air quality standards. However, this blanket extension was challenged and in Natural Resources Defense Council, Inc. v. EPA, 154 U.S. App. D.C. 384, 475 F.2d 968 (1973), the District of Columbia Circuit held that, although the Administrator had acted in good faith, he had not met the requirements of § 110 in granting the two-year extension. He was ordered to rescind the extension and to require those states which had not yet submitted plans fully complying with § 110 to do so by April 15, 1973. These plans had to meet all requirements of § 110 and be capable of meeting the primary air quality standards by May 31, 1975. If extensions of up to two years were requested, the Administrator had to determine in each case that all requirements of § 110(e) for granting an extension had been met.

The EPA did rescind its extension and the State of New York prepared an implementation plan concerning transportation controls in the New York City area. The plan as adopted has four levels of strategies for reducing pollutants -- primary stage strategies which have to be followed if the 1975 deadline is to be met, maintenance stage strategies which are of little effect in meeting the 1975 deadline but necessary to maintaining air quality after 1975, a contingency stage strategy which is required if primary stage strategies fail, and secondary stage strategies which may be beneficial but need further study. The primary strategies as listed by the plan together with the designation letter and number given to each are: vehicle turnover as new automobiles with emission controls replace old vehicles (A-1), retrofitting heavy -duty vehicles with catalytic converters (A-2); thrice yearly emission inspections of all livery vehicles (A-3); semi-annual emission inspections of heavy-duty vehicles (A-4); emission inspections of passenger cars (A-5); training of mechanics (A-6); maintenance and inspection of diesel buses (A-7); retrofitting of light-duty vehicles with catalytic converters (A-8); elimination of leaded gasoline (A-9); reciprocal retrofit and fuel regulations in New Jersey and Connecticut (A-10); enforcement of traffic and parking regulations (B-1A); traffic management (B-1B); selective ban on taxicab cruising (B-1C); reduction in the number of parking places in Manhattan business districts (B-3); expanded use of exclusive bus lanes and increased express bus service (B-5); staggering of work hours and days (C-8); and citizen participation in the planning process and public information (E-4). A contingency stage strategy would be to ban all private automobiles from Manhattan's business districts (B-2). A table in the margin shows the reduction in air pollutants that New York expected each primary strategy to achieve, although it acknowledged that the success of any one strategy depended on the success of several others.*fn3

New York submitted the plan to the EPA on April 17, 1973, and in an accompanying letter Governor Rockefeller requested a two-year extension for meeting the photochemical oxidants standard and an eighteen-month extension for meeting the carbon monoxide standard. The letter explained that achieving the required standards required installing catalytic converters on all existing passenger cars and that it was not converters could not be produced and installed in time and their reliability was unproven. Also it was doubted that the petroleum industry could supply in time sufficient quantities of lead-free gasoline necessary for catalytic converters. Rockefeller added as new primary strategies a requirement that all 1975 model taxis be equipped with a "California package" for emission controls (A-11),*fn4 a requirement that deliveries to stores, factories, and office buildings be made after business hours (D-3), and a requirement that tolls be imposed on all East River and Harlem River Bridges (B-7).*fn5

On June 22, 1973, the Administrator approved New York's plan and granted a nineteen-month extension for meeting both the photochemical oxidants and carbon monoxide standards. 38 Fed. Reg. 16560-61. He also promulgated amendments of 40 C.F.R. § 52.1670, a table that listed the dates by which New York had to meet air quality standards. Another regulation, 40 C.F.R. § 52.1683, was revised to require that New York submit by July 30, 1973 the legislative authority needed to carry out the strategies and by December 30, 1973 the necessary adopted regulations and administrative policies needed to implement such strategies. 38 Fed. Reg. 16567.

II.

What is the scope of judicial review in this case? For the most part we are concerned with whether the Administrator was correct in his factual determinations. It is settled that judicial review of these determinations made in approving state implementation plans is limited to determining if the findings were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (A). See, e.g., Delaware Citizens for Clean Air, Inc. v. Administrator, 480 F.2d 972, 976 (3d Cir. 1973). In making a finding on this issue a "court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). If the record does not disclose the basis of the Administrator's determination, the court can ask him for a further explanation. Citizens to Preserve Overton Park v. Volpe, ...


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