Motion by plaintiffs-appellants to recall this Court's mandate of April 26, 1976, as modified on June 2, 1976, directing the United States District Court for the Southern District of New York to enforce four pollution-control strategies of the Transportation Control Plan for the Metropolitan New York City Area and to vacate an order of the district court, Kevin T. Duffy, Judge, dated July 13, 1976, holding that the Plan was enforceable against the State and City of New York only as direct polluters but that they were not obligated to enforce the Plan against others using roads, bridges or facilities controlled by the State or City. With the motion were consolidated a petition by appellants for a writ of mandamus claiming violation of this Court's mandate and a direct appeal from the district court's decision and order. The motion and petition are granted. The district court's decision is vacated with direction to enforce the Plan as originally interpreted by this Court.
Mansfield, Timbers and Meskill, Circuit Judges.
MANSFIELD, Circuit Judge:
For the third time the Transportation Control Plan for the Metropolitan New York City Area ("the Plan"), a plan for control of that area's automobile pollution, submitted by the State of New York ("the State") to the Environmental Protection Agency ("EPA") pursuant to § 110(a)(1) of the Clean Air Amendments of 1970, 42 U.S.C. § 1857c-5(a)(1) and approved by it, is before this Court. In 1974 we upheld the validity of the Plan in all material respects, see Friends of the Earth v. EPA, 499 F.2d 1118, 1126 (2d Cir. 1974) (" Friends I "), and on April 26, 1976, we reversed a decision of the Southern District of New York denying enforcement of the Plan in a citizen suit instituted under the Clean Air Act and ordered that partial summary judgment be granted in favor of plaintiffs enforcing four strategies of the Plan,*fn1 as to which the defendants were admittedly in default, see Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976) (" Friends II "). We noted that the defendants' implementation of the Plan was already almost a year in default, that carbon monoxide pollution in New York City had climbed to five times the federal health standards, and that this Court could not "consistently with its duty be a party to the delaying process that has led to this situation." We ordered that consideration of the case on remand be given priority.
On April 30, 1976, Judge Kevin T. Duffy of the Southern District of New York, at first following our mandate, ordered implementation and enforcement of the four pollution-control strategies before the court and required a detailed schedule of compliance. When our attention was directed in a petition for rehearing by the City of New York ("the City") to the fact that the defendants desired to raise constitutional issues with respect to the Plan which had not previously been considered, we on June 2, 1976, denied the petition but
"without prejudice to consideration by the United States District Court for the Southern District of New York of constitutional issues not decided prior to the entry of the order which was the subject of the notice of appeal . . . and without prejudice to the right of the defendants to move in the said District Court to set aside the order of the District Court dated April 30, 1976, on the aforesaid constitutional grounds."
In so ruling we did not authorize the district court to engage in reinterpretation of the Act, much less in a reinterpretation that would contradict our own prior considered construction of it or our determination as to the scope of its enforceability.
After hearing argument on the constitutional issues Judge Duffy on July 13, 1976 modified the partial summary judgment previously granted by interpreting § 304 of the Act, 42 U.S.C. § 1857h-2, as permitting enforcement of the Plan against the State or its subdivisions (including the City) only to the extent that they might be direct polluters but not as obligating them, although they were the architects and sponsors of the Plan, to implement it against others despite the fact that they had agreed to do so under the terms of the Plan and they controlled, operated, and managed the roads and facilities upon which the polluting activities by others occurred.*fn2 His interpretation of § 304 was based on the theory that Congressional use of the Commerce Clause to compel the City to enforce the Plan against others would violate the City's rights under the Tenth Amendment, as recently expounded by the Supreme Court in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245, 44 U.S.L.W. 4974 (1976), and by several other circuits in decisions holding that Congress may not order a state to draft an implementation plan or to enforce an EPA-promulgated plan. See Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), cert. granted, 426 U.S. 904, 96 S. Ct. 2224, 48 L. Ed. 2d 829 (1976); District of Columbia v. Train, 172 U.S. App. D.C. 311, 521 F.2d 971 (1975), cert. granted, 426 U.S. 904, 96 S. Ct. 2224, 48 L. Ed. 2d 829 (1976); and Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), cert. granted, 426 U.S. 904, 96 S. Ct. 2224, 48 L. Ed. 2d 829 (1976). Relying heavily upon these decisions, the district court all but emasculated the Plan as an enforceable instrument.
Following Judge Duffy's decision, appellants promptly moved in this Court for the recall and further modification of our April 26, 1976, mandate as it had been modified on June 2, 1976, and to vacate the district court's decision. Plaintiffs also petitioned us for a writ of mandamus against Judge Duffy, based on the claim that his decision violated our mandate and abused his discretion, which was consolidated with plaintiffs' direct appeal under 28 U.S.C. § 1291 from the district court's decision.
For the reasons that follow, we find that the district court's July 13, 1976, decision violated our mandate and abused that court's discretion. Accordingly we vacate that decision. We further direct that the district court's summary judgment of April 30, 1976, be reinstated and that such further relief be issued as is required to enforce the four strategies.
A brief review of the litigation surrounding the Plan is necessary to fully understand the issues now before us. As amended in 1970, the Clean Air Act, § 101(b) (1), 42 U.S.C. §§ 1857, et seq., contains a comprehensive regulatory scheme designed to promote public health and welfare by reducing air pollution caused by various sources controlled or regulated by the State, including motor vehicles operated on its state highways, bridges, and other facilities. Acting pursuant to the Act the Administrator of the EPA has established standards governing maximum concentrations of specific pollutants in the air. Under the Act, state and local governments assume the primary responsibility for establishing and implementing air quality control programs to meet these standards, § 107(a), 42 U.S.C. § 1857c-2(a). Section 110(a) (1) of the Act, 42 U.S.C. § 1857c-5(a) (1), requires each state to submit to the EPA a plan for "implementation, maintenance, and enforcement" of these standards, which the EPA must approve if the plan satisfies the statutory criteria, see § 110(a) (2), 42 U.S.C. § 1857c-5(a) (2). If a state fails to submit a plan or if its plan fails to meet the criteria, the EPA is obligated to prepare and promulgate a substitute plan for that state, § 110(c)(1), 42 U.S.C. § 1857c-5(c) (1), which may be enforced by the EPA.
On April 30, 1971, the EPA Administrator promulgated national primary and secondary air quality standards for six pollutants, following which each state was obligated under the Act to submit its implementation plan for these pollutants, including transportation controls necessary to attain primary air quality standards. If a state did not submit a plan of its own, it faced the promulgation and enforcement by the Administrator of an EPA-prepared plan. The State of New York, with the assistance of the Department of Air Resources of the New York City Environmental Protection Administration and other city agencies, prepared and promulgated the Plan here at issue to meet the primary standards for carbon monoxide, hydrocarbons, oxidants, and nitrogen dioxide in the New York City Metropolitan area.*fn3 The Plan, containing 32 specific strategies, is designed to meet "primary ambient" (outdoor surrounding air) standards and to attain "secondary ambient" standards "requisite to protect the public welfare from any known or anticipated adverse effects associated with" air pollution. The Plan was submitted to the EPA after public notice and hearings, and was approved by the EPA on June 22, 1973, with certain revisions.*fn4
In 1974 some of the plaintiffs in this action sought review of the Plan pursuant to § 307(b) (1) of the Act, 42 U.S.C. § 1857h-5(b) (1), on the grounds that it was vague and inadequate and that the State had failed to provide "adequate assurances" that there would be sufficient funds to implement it. The State joined the EPA in defending the Plan, which we upheld in all substantive respects. Among other things we directed the Administrator to "provide a detailed document of his rationale" as to the basis for the EPA's determination that adequate State resources had been committed to the Plan. Friends I, 499 F.2d 1118, 1126 (2d Cir. 1974). We declined in that action to order immediate implementation of the Plan for the reason that jurisdiction in the suit rested on § 307(b) (1) of the Act, which is restricted to reviewing the correctness of the Administrator's approval of a state plan. We noted, however, that § 304 of the Act was available to citizens to bring suit in the district court to enforce implementation of the Plan in the event of the failure of the State to do so.
In Friends II, supra, the present plaintiffs brought suit pursuant to § 304 of the Act, 42 U.S.C. § 1857h-2, which provides that
"any person may commence a civil action on his own behalf - (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . ."
The section defines the term "emission standard or limitation" to include "a schedule or timetable of compliance . . . which is in effect under this chapter . . . or under an applicable implementation plan."
We held in Friends II that the City and State were required to implement the four strategies which were before the court, concluding that after our prior review of the EPA's approval of the State-promulgated Plan it became "controlling and must be carried out by the state" and "binding upon and enforceable against state and local officials." 535 F.2d at 169, 170. We examined the citizen suit provisions of the Act, § 304, and concluded that the district court could not escape enforcing the Plan on the grounds that the EPA was ...