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June 28, 1990


The opinion of the court was delivered by: Lasker, District Judge.


The Environmental Protection Agency ("EPA") is required by the Clean Air Act to promulgate NAAQS for certain harmful pollutants, including carbon monoxide. 42 U.S.C. § 7409(b)(2) (1982). The NAAQS, which govern the concentration of a pollutant in the air, must be set at a level below which the EPA administrator judges the pollutant is to be kept to safeguard human health. 42 U.S.C. § 7409(b)(1) (1982). The Clean Air Act requires each state to adopt a state implementation plan ("SIP") that provides for the "implementation, maintenance, and enforcement" of the NAAQS and to submit its SIP to the EPA for approval. 42 U.S.C. § 7410(a)(1) (1982). The New York SIP, which commits the state to secure major reductions in carbon monoxide concentrations in the New York City metropolitan area to achieve the NAAQS, was approved by the EPA.

NEPA requires that an environmental impact statement ("EIS") be prepared in connection with any major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C) (1982). Part of the New York SIP includes a commitment by New York City ("the defendants" or "the City") that:

  To further insure that the carbon monoxide
  standard is attained in New York City, if an EIS
  [Environmental Impact Statement] for a project
  proposal identifies a violation or exacerbation
  of the carbon monoxide standard [NAAQS], then the
  City commits to assure that mitigating measures
  will be implemented by the project sponsor or
  City, so as to provide for attainment of the
  standard by December 31, 1987 and maintenance of
  it thereafter.*fn2 ("the City's commitment")

The defendants earlier moved to dismiss this case on the grounds that the suit was not permitted under the citizen suit provision of the Clean Air Act, a provision authorizing suits to compel compliance with emission standards or limitations of a SIP. The City argued that its commitment, cited above, did not constitute "an emission standard or limitation" as that term is defined in 42 U.S.C. § 7604(f) (1982). We found jurisdiction because of the City's commitment to "take affirmative, although unspecified, steps to achieve the standard." Atlantic Terminal Urban Renewal Area Coalition v. New York City Dept. of Environmental Protection, 697 F. Supp. 157, 161 (S.D.N.Y. 1988).

The parties have each moved for summary judgment. ATURA claims that the defendants have repudiated the City's commitment. The defendants argue that they have fulfilled that commitment.


It is necessary to define the precise nature of the City's commitment in order to determine whether or not that commitment has been fulfilled. The relevant provision of the SIP has a simple conditional construction: if X occurs, then the City commits to do Y. The parties are in agreement that X, the condition that triggers the City's commitment, has occurred: the FEIS for the Atlantic Terminal Project identified a number of violations and exacerbations of the NAAQS. The FEIS predicted that, with or without the Project, carbon monoxide concentrations at thirteen locations in the area surrounding the Project would exceed the NAAQS in 1988 and 1991.*fn3

In light of those unequivocal findings, both parties agree that the City has become committed to "assure that mitigating measures will be implemented by the project sponsor or the City, so as to provide for attainment of the standard." Both parties interpret this commitment to mean that the City must affirmatively act to adopt mitigation measures adequate to bring the area into compliance. They part company, however, over the issue of the significance of the December 31, 1987 date mentioned in the City's commitment. ATURA claims that it is entitled to summary judgment because the defendants admit that they did not assure that mitigation measures would be implemented so as to attain the NAAQS by December 31, 1987. The defendants argue that the December 31, 1987 date merely restates the statutory goal for attainment of the NAAQS and was not intended to bar a project such as the Atlantic Terminal Project for which mitigation by December 31, 1987 would not have been feasible and whose mitigation measures will attain the NAAQS within a reasonable time after that date.

In the FEIS, the City outlined mitigation measures designed to offset any violations or exacerbations of the carbon monoxide standard caused by the Project. Mitigation measures proposed in the FEIS include adjustment of traffic signal timing, transformation of certain parking or standing lanes into moving lanes during peak travel periods, separation of conflicting traffic movements into definite paths of travel using pavement markings or raised islands, street widening and deployment of traffic enforcement agents.*fn4 According to the FEIS, "with traffic mitigation the proposed project will have no significant air quality impacts."*fn5 However, the FEIS also states that the mitigation measures it outlines will not be sufficient to mitigate significant traffic impacts from other sources. With those mitigation measures in place, the FEIS predicts that 11 sites in the Project area will still violate the NAAQS in 1988 and 1991.*fn6 The FEIS itself states, "[C]arbon monoxide concentrations at these locations will not be in conformance with the SIP with or without the project, or with the project with its mitigation."*fn7

The defendants acknowledge that § 3.6(A) of the SIP requires them to commit to assure that attainment measures will be implemented not only for exceedances caused by the Project but also for exceedances not caused by the Project which are revealed through the EIS process. Accordingly, the City has developed a comprehensive traffic management plan for the downtown Brooklyn area (the "Downtown Brooklyn Master Plan" or "DBMP") to fulfill its SIP commitment. The DBMP addresses the potential impacts of a number of projects expected to be built by 1988 and 1992 and includes mechanisms for eliminating pre-existing exceedances that were revealed in the FEIS. The DBMP outlines a combination of engineering and street improvement measures designed to correct traffic congestion problems in downtown Brooklyn so as to achieve the NAAQS.*fn8 The City has stated its intention to implement these improvements and the necessary expenditures have been approved as part of the City's capital budget plan for fiscal years 1989-92.*fn9

Putting aside for the moment the issue of the significance of the December 31, 1987 deadline mentioned in the SIP, the narrow but critical issue to be determined is whether the FEIS and the DBMP convincingly establish that the NAAQS will be attained within the time frame they establish.

The FEIS states that the mitigation measures it proposes will offset any exceedances or exacerbations of the NAAQS caused by the Atlantic Terminal Project. ATURA disputes that statement and claims that the FEIS both understates the effects of the Project on air quality and overstates the efficacy of the proposed mitigation measures. ATURA contends that in order to minimize both the current level of carbon monoxide and the Project's effect on it the defendants have relied on data which they knew to be incorrect.

The DBMP states that the mitigation measures it proposes will, in conjunction with the measures proposed in the FEIS, achieve the NAAQS by 1993. ATURA claims that the DBMP attainment measures, even if implemented on schedule, will not be sufficient to eliminate exceedances of the NAAQS in the Project area.

ATURA argues that there are four defects in the FEIS and DBMP which it claims resulted in a severe understatement of the future carbon monoxide concentrations in the Project area: 1) the FEIS overestimated the beneficial results of two emissions reductions programs: the New York State Vehicle Inspection and Maintenance Program and the New York State Mechanics Training Program; 2) the FEIS compared the "build" and "no-build" alternatives in a deceptive manner by analyzing the "no-build" alternative without the proposed DBMP attainment measures; 3) the DBMP measures will not be completed on schedule; and 4) the predictions of future carbon monoxide levels in the DBMP are overly optimistic due to the use of mathematical equations known as the "CHI methodology" and the "imputed v/c ratio."


At the outset, the defendants answer that because ATURA failed to challenge the methodologies and assumptions contained in the FEIS during the environmental impact statement ("EIS") process, they may not do so here. ATURA responds that certain methodologies used in the FEIS and the DBMP did not appear in the draft environmental impact statement (the "DEIS") and therefore could not have been challenged by them during the EIS process. Moreover, ATURA notes that the DBMP was not published until after the EIS process had concluded.

While substantial support exists for the defendants position that challenges to the EIS should be raised during the EIS process, see, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 1216, 55 L.Ed.2d 460 (1978) (in tervenors are obligated to structure their participation so that it alerts administrative agency to their contentions), a number of courts, when confronted with untimely challenges to an EIS, have chosen nevertheless to evaluate the merits of those challenges, which often implicate important public interests, and to consider the plaintiffs' failure to raise the objections earlier as a factor in evaluating those objections. See, e.g., Kentucky ex rel. Beshear v. Alexander, 655 F.2d 714, 718 (6th Cir. 1981) (merits of plaintiff's objections to EIS considered even though plaintiff "clearly did not meet its obligation of meaningful participation"); Citizens Committee Against Interstate Route 675 v. Lewis, 542 F. Supp. 496, 526-27 (S.D.Ohio 1982) (merits of claim based on alleged inadequacies of FEIS considered despite plaintiff's delay in making claim); Woida v. United States, 446 F. Supp. 1377, 1389 (D.Minn. 1978) (lack of comments by plaintiffs concerning draft EIS butresses court's conclusion that EIS is adequate); County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1385 (2d Cir. 1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978) (new evidence properly admitted in district court, although plaintiffs' failure to offer it during EIS process might cast reflections upon its probative significance); California v. Bergland, 483 F. Supp. 465 (E.D.Cal. 1980) ("laches and failure to exhaust administrative remedies are disfavored doctrines in NEPA cases"). Accordingly, although the statutory and regulatory structure contemplates that, if possible, ATURA's concerns should have been raised and answered at an earlier stage, each of its concerns, set forth in detail in the appendix to this opinion, has been thoroughly reviewed to determine whether any of them would justify this court's interference.

  With regard to the issues raised by ATURA, both parties have
put before this court material that was not available to the
agencies that prepared and reviewed the Atlantic Terminal EIS.
In reviewing agency action, a court may not engage in a review
of material not before the agency. Camp v. Pitts, 411 U.S. 138,
142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) ("the focal
point for judicial review should be the administrative record
already in existence, not some new record made initially in the
reviewing court"). Nevertheless,

    . . allegations that an EIS has neglected to
  mention a serious environmental consequence,
  failed adequately to discuss some reasonable
  alternative, or otherwise swept "stubborn
  problems or serious criticism . . . under the
  rug" . . . raise issues sufficiently important to
  permit the introduction of new evidence in the
  district court, including expert testimony with
  respect to technical matters, both in challenges
  to the sufficiency of an environmental impact
  statement and in suits attacking an agency
  determination that no such statement is

County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1385 (2d Cir. 1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978) ATURA alleges that in the FEIS, stubborn problems have been swept under the rug. Accordingly, the "new evidence" has been considered in light of the Court of Appeals' observation that it would be "probative only insofar as it tended to show either that the agency's research or analysis was clearly inadequate or that the agency improperly failed to set forth opposing views widely shared in the relevant scientific community." 562 F.2d at 1385.


ATURA argues that summary judgment in favor of the municipal defendants is inappropriate at this time because there is a disputed issue of material fact as to whether the City's methodology for predicting future carbon monoxide concentrations was reasonable. Although it is beyond question that a dispute exists as to the reasonableness of the methodology employed in the FEIS, it does not follow that a dispute over reasonableness precludes summary judgment. While there may be disputed issues of material fact which need to be resolved before a court can reach a legal conclusion as to reasonableness, the issue of reasonableness itself is not an issue of material: fact.

Summary judgment is appropriate if the court can fairly decide the case on the evidence before it and the evidence before it would not be meaningfully enhanced by a trial. If a trial were held in this case, it would apparently consist of the testimony of the witnesses whose affidavits are already in the record, in which they would simply verify the opinions they have expressed in those affidavits. The parties' experts have engaged in cross-examination by addressing each other's arguments in affidavits and reply affidavits. Neither side has suggested that a trial would substantially illuminate the question of whether the City's claim that the measures outlined in the FEIS and in the DBMP are sufficient to attain the NAAQS is reasonable.

As explained above, ATURA alleges that certain defects in the FEIS air quality analysis, known to the City at the time it approved the FEIS, resulted in drastic underpredictions of carbon monoxide concentrations in the FEIS. ATURA's challenge to the adequacy of the FEIS, which forms the core of its Clean Air Act claims, overlaps substantially with its proposed claim under NEPA. Both claims require the court to determine whether the City, through the EIS process, "has taken a 'hard look' at the environmental consequences" of the Atlantic Terminal Project. Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1029 (2d Cir. 1983) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)). Accordingly, the discussion which follows is applicable to both claims.

The defendants argue that ATURA seeks to have the court arbitrate scientific disputes irrelevant to whether the FEIS took the requisite "hard look" at potential environmental effects. The defendants assert that the court should defer to the EPA's determination of scientific and technical issues in approving the FEIS and the DBMP and not choose among conflicting experts' testimony.

The Court of Appeals has stated:

  In order to fulfill its role, the EIS must set
  forth sufficient information for the general
  public to make an informed evaluation; and for
  the decisionmaker to consider fully the
  environmental factors involved and to make a
  reasoned decision after balancing the risks of
  harm to the ...

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