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Council of Commuter Organizations v. Thomas

decided: August 28, 1986.


Petition for review of an order of the United States Environmental Protection Agency approving the 1982 revision of the New York State Implementation Plan for the Clean Air Act. Petition denied. Judge Van Graafeiland concurs with separate opinion.

Author: Newman

Before: VAN GRAAFEILAND, NEWMAN, and MINER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

In the aftermath of our decision in Council of Commuter Organizations v. Gorsuch, 683 F.2d 648 (2d Cir. 1982) ("CCO I"), we return to the continuing efforts of commuter groups in the New York City metropolitan area to convert the national effort to combat air pollution into a local battle to improve mass transit. In CCO I, though the commuter groups lost that round of litigation against the United States Environmental Protection Agency (EPA), they secured some basis for believing that the next steps to be taken by the State of New York in complying with the requirements of the Clean Air Act, as amended, 42 U.S.C. §§ 7401-7626 (1982 & Supp. II 1984), would not only make the air cleaner but would also make mass transit better. It now appears that such optimism, which we admit we shared, was not well founded. The reason for disappointment is that New York has changed its mind as to the mass transit steps it will commit itself to take in complying with the Act. Though the State is willing to improve mass transit and is spending increased amounts of money for this purpose, it has backed away from commitments that we and the plaintiffs expected to be detailed when New York submitted to EPA the 1982 revision of its State Implementation Plan (SIP). That 1982 revision was approved by EPA in a June 17, 1985, ruling, which is now challenged on this petition for review. For reasons that follow, we conclude, as did EPA, that the Act permits New York to change its mind and that the 1985 approval is not erroneous in any of the respects urged by the petitioning commuter groups. We therefore deny the petition for review.


Regrettably, the nature of the issue and the basis of our decision emerge only after detailed examination of the complex statutory and regulatory scheme and the history of New York's prior efforts to satisfy the Act's requirements. Perhaps one day Congress will try to remove the smog that obscures understanding of the Act, even as it legislates to clean the air. Until then, we must do the best we can with the materials at hand.

The statutory scheme and New York's prior efforts at compliance are outlined in detail in CCO I, 683 F.2d at 651-55, and will only be highlighted here. States are required to include in a SIP transportation control strategies where necessary to meet air quality standards promulgated by EPA. 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) (per curiam). In 1973 EPA approved an amendment to New York's SIP in which New York proposed, among other things, to curtail automobile use in New York City and thereby reduce air pollution by imposing tolls on the bridges over the East and Harlem Rivers. 38 Fed. Reg. 16,550, 16,560 (1973). In 1977 Congress amended the Act to permit states previously committed to bridge tolls as a means of curtailing air pollution to remove such tolls provided that, in return, the states would undertake new obligations. The nature of those new obligations is at the heart of the current dispute.

The toll-removal provision is contained in the Moynihan-Holtzman Amendment, section 7410(c)(5). States opting to remove tolls previously promised in a SIP are required to revise their SIPs not later than August 7, 1978, to include comprehensive measures 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.

§ 7410(c)(5)(B). This subsection also specifies that such measures shall

provide for emissions reductions equivalent to the reductions which may reasonably be expected to be achieved through the use of the tolls or charges eliminated.

Id. New York is subject to the requirements of section 7410(c)(5) not only because it opted to remove the bridge tolls but also because these same requirements apply, by virtue of the so-called "missing Part D," to areas like New York City that could not meet air quality standards for ozone and carbon monoxide by 1982 and requested an extension until 1987 to meet such standards. See § 7410(a)(3)(D); CCO I, 683 F.2d at 652-53.

In 1979 New York, having elected to remove the bridge tolls, submitted to EPA a revision of its SIP to comply with the Moynihan-Holtzman Amendment. The 1979 submission included more than 40 transit improvement projects to satisfy the statutory requirement that a state must establish, expand, or improve transit "to meet basic transportation needs." New York identified five criteria for defining basic transportation needs: (1) fare stability, (2) operational safety and reliability, (3) comfort, (4) environment and security, and (5) availability and convenience of service. To achieve fare stability the State proposed to maintain the then current New York City transit fare of 50 cents through 1981 with increases thereafter to be less than increases in the cost of living. The State indicated that it would rely primarily on fair stabilization to satisfy the requirement of achieving emission reductions equivalent to what the ...

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