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Council of Commuter Organizations v. Gorsuch

decided: June 16, 1982.


Petition for review of an order of the Environmental Protection Agency approving New York's mass transit improvement plan as satisfying the requirements of the Clean Air Act pending an adequate submission of additional implementing details and schedules by July 1, 1982.

Lumbard, Friendly, and Newman, Circuit Judges.

Author: Newman

NEWMAN, Circuit Judge:

This appeal is the latest in a long line of efforts by environmental groups and concerned citizens to secure a reduction of pollution levels in the New York City metropolitan area as required by the Clean Air Act. In previous efforts, the environmental groups obtained a court order enforcing New York's earlier decision to impose tolls on bridges to Manhattan as one of many strategies chosen by the State to reduce intolerably high levels of pollution in the New York City area. But before the bridge toll strategy was implemented, Congress in the 1977 Amendments to the Clean Air Act gave states the option of replacing intra-city bridge toll strategies with other transportation-related strategies including the improvement of public transportation. New York opted for this change in approach and, after obtaining a modification of the court order, elected not to impose the bridge tolls. Although Congress expressly required that New York's state implementation plan (SIP) be revised to include the mass transit improvement program by August 1, 1978 if New York was to discard the bridge toll strategy, the Environmental Protection Agency (EPA) did not give final approval to New York's mass transit improvement plan until September 9, 1981. EPA approved the plan based upon New York's commitment to submit additional implementing details and schedules by July 1, 1982. The Council of Commuter Organizations and other concerned individuals and groups petition for review of EPA's approval, contending that New York's plan does not meet New York's basic transportation needs and contains insufficient implementing schedules and details. We find EPA's failure to take final action until more than three years after the express statutory deadline for SIP revision inexcusable, and we do not in any way condone the timing of EPA's belated approval. Nevertheless, now that EPA has finally acted, we conclude that its construction of the substantive requirements of the mass transit provisions of the Clean Air Act falls within the permissible range of discretion afforded to an agency interpreting the statute it administers. Accordingly, we uphold EPA's approval of New York's public transportation improvement plan pending an adequate submission of additional implementing details and schedules by July 1, 1982. We deny the petition for review, except to the extent that EPA's order prematurely lifted the moratorium on major new construction or modification of stationary sources. We vacate that portion of EPA's order impermissibly lifting the moratorium and remand for entry of a revised order consistent with our opinion in Connecticut Fund for the Environment, Inc. v. EPA, 672 F.2d 998 (2d Cir. 1982).


The Clean Air Act, 42 U.S.C. §§ 7401-7642 (Supp. III 1979),*fn1 establishes a complex federal-state relationship to control air pollution. Pursuant to the Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676, EPA promulgated national primary ambient air quality standards (NAAQSs) as pollution limits necessary "to protect the public health." § 7409(b) (1). The states submitted SIPs designed to attain these standards by the statutory deadline of mid-1975, unless extended to 1977. See generally Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 63-67, 43 L. Ed. 2d 731, 95 S. Ct. 1470 (1975); Union Electric Co. v. EPA, 427 U.S. 246, 249-51, 49 L. Ed. 2d 474, 96 S. Ct. 2518 (1976). The states revised their SIPs to include transportation control strategies where other measures would not by themselves ensure attainment. See § 7410(a) (2) (B); Natural Resources Defense Council, Inc. v. EPA, 154 U.S. App. D.C. 384, 475 F.2d 968 (D.C. Cir. 1973).

When it became apparent that many states would fail to meet the statutory deadline, Congress passed the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685. Pursuant to the 1977 Amendments, the states identified areas not meeting the NAAQSs and EPA designated these areas as "nonattainment" for each NAAQS that was violated. §§ 7407(d); 7501(2); 43 Fed. Reg. 8962 (Mar. 3, 1978). In return for extending the deadlines for attainment and for avoiding potential bans on sources of pollution in excessively polluted areas, these states were required to submit SIP revisions satisfying the stringent requirements added as Part D of Title I of the Clean Air Act by the 1977 Amendments. §§ 7501-7508. Under Part D, the revised SIP had to provide for attainment "as expeditiously as practicable" but no later than December 31, 1982, § 7502(a), and had to comply with other statutory requirements that Congress imposed to ensure attainment by the new deadlines. States that did not have an adequate Part D submission in force by July 1, 1979 were subject to a moratorium in any nonattainment area on major new source construction or modification that would contribute to concentrations of pollution for which an area had been designated nonattainment. §§ 7410(a) (2) (I), 7502(a) (1). See generally Connecticut Fund for the Environment, Inc. v. EPA, supra. In the case of areas that were nonattainment for carbon monoxide or ozone, additional extensions for attainment until December 31, 1987 were granted if earlier attainment was not possible. § 7502(a) (2). States receiving this additional extension included in their Part D submissions plans meeting the special additional requirements of § 7502(b) (11). These "extension states" are also required to submit additional SIP revisions by July 1, 1982 that contain further enforceable measures to assure attainment by December 31, 1987. §§ 7502 note; 7502(c).*fn2

The 1977 Amendments added two provisions to the Clean Air Act regarding transportation-related strategies that are the focal point of dispute in this case. For the first time, Congress explicitly recognized the need to improve public transportation systems if other strategies, such as transportation control measures designed to discourage or restrict motor vehicle use, are to be fully effective in reducing pollution.*fn3 Some transportation controls "may be practical only when adequate public transportation alternatives [are] available to meet basic transportation needs." H. Rep. No. 95-294, 95th Cong., 1st Sess. 229 (1977).

The first pertinent statutory provision is the Moynihan-Holtzman Amendment, § 7410(c) (5), which permits a state upon application of its Governor to eliminate a strategy in a SIP requiring the imposition of an intra-city bridge toll, § 7410(c) (5) (A), if the SIP is revised to include

not later than one year after August 7, 1977 . . . comprehensive measures (including the written evidence required by Part D), to:

(i) establish, expand, or improve public transportation measures to meet basic transportation needs, as expeditiously as is practicable; and

(ii) implement transportation control measures necessary to attain and maintain national ambient air quality standards,

and such revised plan shall, for the purpose of implementing such comprehensive public transportation measures, include requirements to use (insofar as is necessary) Federal grants, State or local funds. . . . Such measures shall, as a substitute for the tolls or charges eliminated . . ., provide for emissions reductions which may reasonably be expected to be achieved through the use of the tolls or charges eliminated.

§ 7410(c) (5) (B). The revisions "shall be submitted in coordination with any plan revision required under Part D" of the Clean Air Act. § 7410(c) (5) (C).

The second relevant provision is § 7410(a) (3) (D), sometimes called the "missing" Part D requirement because it was inadvertently omitted from Part D as originally enacted. When it was added four months later as one of several technical and conforming amendments enacted as § 14 of the Safe Drinking Water Amendments of 1977, Pub. L. No. 95-190, 91 Stat. 1393 (Nov. 16, 1977), it was inserted into § 7410 rather than Part D. This provision requires states that obtained extensions for carbon monoxide or ozone attainment beyond 1982 under § 7502(a) (2) to revise their plans "to include the comprehensive measures and requirements" of § 7410(c) (5) (B). The provision was added "to require cities with severe [ozone and carbon monoxide] problems to use transit funds available to them to help them alleviate air pollution problems." 123 Cong. Rec. H11956-57; S18372-73 (Nov. 1, 1977). Even in a statutory scheme as complex as the Clean Air Act, it is curious that the transportation improvement and control provisions were not included in Part D, but instead were hidden in §§ 7410(a) (3) (D) and 7410(c) (5) (B). And, as one knowledgeable commentator has observed, "Upon reading the two provisions, one almost wishes that they had remained hidden." Currie, Relaxation of Implementation Plans Under the 1977 Clean Air Act Amendments, 78 Mich. L. Rev. 155, 190 (1979).


New York's experience with the transportation-related requirements of the Clean Air Act dates back to 1973 when EPA approved a revision to New York's SIP that added transportation control measures to New York's plan for reduction of carbon monoxide and ozone pollution levels in the New York City metropolitan area. 38 Fed. Reg. 16550, 16560 (June 22, 1973). The revisions (chosen by New York) provided for transportation control strategies including one that would impose tolls on the previously toll-free bridges over the East and Harlem Rivers. We upheld in large part EPA's approval of the revisions in Friends of the Earth v. USEPA, 499 F.2d 1118 (2d Cir. 1974), but declined to enforce the SIP because Congress required that suits seeking judicial enforcement of implementation plans be instituted in a district court where a factual record can be developed. Thereafter, when some of the transportation control strategies including the bridge toll strategy remained unimplemented and a citizen suit was brought in the district court, we affirmed a court order requiring the implementation and enforcement of the bridge toll strategy and other still unimplemented strategies in New York's SIP. See Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir.), cert. denied, 434 U.S. 902, 54 L. Ed. 2d 188, 98 S. Ct. 296 (1977); Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976).

After the 1977 Amendments to the Clean Air Act were signed into law and a modification of the court order was obtained, EPA approved New York's application under the Moynihan-Holtzman Amendment to eliminate the bridge toll strategy. 42 Fed. Reg. 61453 (Dec. 5, 1977). In August, 1978, New York submitted its plan to satisfy that section's requirements for the improvement of public transportation and the implementation of additional transportation control measures. EPA expressed dissatisfaction with New York's proposed plan at 44 Fed. Reg. 5693 (Jan. 29, 1979). Meanwhile, on March 3, 1978, EPA designated the entire New York City metropolitan area as nonattainment for ozone and portions as nonattainment for carbon monoxide.*fn4 43 Fed. Reg. 8962, 9018-19 (Mar. 3, 1978). Since New York requested an extension under § 7502(a) (2) until 1987 for carbon monoxide and ozone attainment, New York became doubly subject to the requirements of § 7410(c) (5) -- both under the Moynihan-Holtzman Amendment, § 7410(c) (5) (B), as a state opting to replace an intra-city bridge toll strategy and under the missing Part D requirement, § 7410(a) (3) (D), as an extension state permitted to attain the carbon monoxide and ozone NAAQSs after 1982. On May 24, 1979, New York submitted its Part D SIP revisions, which included a revised plan for public transit improvement; the revision was accompanied by a document entitled "New York State Air Quality Implementation Plan, the Moynihan/Holtzman Amendment Submission: Transit Improvements in the New York City Metropolitan Area," which, as its title suggests, deals more specifically with the mass transit-related portions of New York's SIP.

New York's plan proposes improvements in the management of the transit system, rehabilitation of parts of the system, promotion of fare stability, improvement of transit support systems, and promotion of mass transit services. The plan includes more than forty transit improvement projects.*fn5 Levels of funding and expected sources of funding at those levels are specified. The plan identifies five criteria for defining the "basic transportation needs" that are the focus of the Moynihan-Holtzman Amendment -- (1) fare stability; (2) operational safety and reliability; (3) comfort; (4) environment and security; and (5) availability and convenience of service -- and concludes that the selected improvements and levels of funding will meet these basic transportation needs. The plan envisions an average annual expenditure on capital project improvements to meet basic transportation needs of $427 million. The plan estimates that its fare stability component alone would cause a reduction of at least 0.4% in total vehicle miles traveled (VMT) in the region, which would cause an equivalent reduction in pollution to that anticipated had the bridge toll strategy been implemented. The fare stability component requires that the fare be maintained at its then current level (50 cents) through 1981 and thereafter be increased at a rate less than the increase in the cost of living.

In May 1980, EPA conditionally approved*fn6 all elements of New York's Part D revisions for ozone and carbon monoxide except those relating to public transportation improvement (on which no action was taken). Among the proposals conditionally approved were New York's transportation control strategies designed to meet the requirements of § 7410(c) (5) (B) (ii) and the corresponding transportation control requirements of § 7410(a) (3) (D). 45 Fed. Reg. 33981 (May 21, 1980). Then on June 30, 1980, nearly two years after the date by which Congress specified that the transit improvement provisions were to be contained in New York's SIP, EPA proposed to disapprove the public transit elements of New York's plan. 45 Fed. Reg. 43794 (June 30, 1980). Specifically, EPA proposed to find that (1) the level of expenditures on mass transportation improvement to which New York was committed was less extensive than necessary to meet the area's basic transportation needs; (2) the plan lacked sufficient implementing schedules and details by which progress toward meeting basic transportation needs could be measured; (3) the state and responsible local agencies had not adopted the necessary requirements in legally enforceable form for the implementation of some mass transit improvements; (4) the plan did not identify sufficient sources of funding to cover program expenses; and (5) the plan was adopted without the required consultation with local government bodies since it had not been endorsed by the Metropolitan Transportation Agency (MTA) and the Tri-State Regional Planning Commission. EPA did propose to ...

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