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FRIENDS OF THE EARTH v. CAREY

August 28, 1975

FRIENDS OF THE EARTH et al., Plaintiffs,
v.
HUGH L. CAREY et al., Defendants



The opinion of the court was delivered by: DUFFY

OPINION AND ORDER

 KEVIN THOMAS DUFFY, D.J.

 This application for a preliminary injunction involves a needless morass of procedural and practical problems. The instant application is a request in two parts. The first is that I preliminarily enjoin and restrain defendants from increasing the transit fare from 35 cents until such time as the Transportation Control Plan is fully implemented, and secondly, that I preliminarily enforce the Transportation Control Plan for the New York City Metropolitan Area submitted by the State of New York and approved pursuant to § 110 of the Clean Air Act, 42 U.S.C. § 1857 et seq.

 It is necessary to determine each branch of these motions separately, but before doing so it may be of some assistance to the reader to know that this Court, on a prior occasion, denied the second request for relief. See 389 F. Supp. 1394 (S.D.N.Y. 1974).

 The grounds for the prior denial of the second branch of relief included the fact that the relevant governmental authorities were in the process of revising the Transportation Control Plan and a strong suggestion was made in that opinion that the United States Environmental Protection Administrator be somehow joined as a party should the necessity for some relief arise in the future.

 1. The question of the fare increase

 In the original complaint and in the original petition, the New York City Transit Authority (hereinafter "NYCTA") was not named in any way, although the Metropolitan Transit Authority (hereinafter "MTA") was a named defendant.

 Just after argument on the instant application, the Friends of the Earth (hereinafter "FOE") filed an amended complaint merely adding the NYCTA; the relevant allegations of the amended complaint remained the same. Upon disclosure that this was to be done, the NYCTA moved to dismiss on the grounds that the 60 day notice required by the statute, 42 U.S.C. § 1875h-2(b) had never been given to it. The notice required by that section was clearly one of statutory and procedural due process.

 The fact is that the complaint does mention the MTA and apparently statutory notice was given to them. Plaintiffs argue that such statutory and procedural due process is unnecessary to add a new party to the action. Their contention is that the NYCTA and the MTA, which undeniably are totally separate entities, have certain officers and general counsel who are common to each, no such formal notice or a complaint with notice annexed, need be given to the NYCTA. It is claimed that actual notice was received and that therefore statutory notice should be waived. This argument reminds me of a little dog chasing his tail around a tree -- a lot of noise and motion but without going anywhere. As such it is totally fallacious. Standards of fairness and due process do not permit such sophistry nor will I permit it in this case.

 Section 1857h-2(b) provides in pertinent part:

 
"(b) No action may be commenced -- under subsection (a)(1) of this section --
 
(A) prior to 60 days after the plaintiff has given notice of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or
 
(B) if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the ...

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