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July 10, 1991


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


This case challenges, from a variety of environmental and regulatory standpoints, the proposed building of "Columbus Center" (the "Project"), a 2.1 million square foot mixed-use redevelopment project involving retail, office, cinema, residential and parking garage space near Columbus Circle in Manhattan. Presently before the Court are defendants' joint motion for summary judgment and plaintiffs' cross-motion for partial summary judgment.


Plaintiffs are a group of coalitions, individual neighbors and local businesses which oppose the construction of Columbus Center. Some of the individuals are board members of nearby Community Boards and others are officers of the Tenants' Associations of local buildings.

Defendant Triborough Bridge and Tunnel Authority ("TBTA"), is the seller of the Project site, for itself and on behalf of defendant City of New York ("the City" or "NYC"). Defendant New York City Industrial Development Agency ("NYC IDA") is a public benefit corporation which is participating in the financing of the project. Defendant New York City Board of Estimate approves all dispositions of the City's real estate interests and amendments to its urban renewal plans. Other defendant City agencies are the Department of Housing Preservation and Development ("HPD") and defendant Metropolitan Transit Authority*fn2 (the parent agency of TBTA). Defendant Boston Properties is the developer, acting through defendant Coliseum Associates.

The City acquired the site just west of Columbus Circle in 1953 by condemnation under the Columbus Circle Slum Clearance Plan, pursuant to General Municipal Law § 72-k then in force. The TBTA purchased rights to use and occupancy in consideration of approximately two million dollars. In 1956 the TBTA constructed, and has since operated an office building and the New York Coliseum, a convention center, on the site. When these facilities were rendered obsolete in the early 1980s by the construction of the Jacob Javits Convention Center, the City and TBTA agreed in 1984 to sell the Coliseum site. The City sought proposals for private purchase and redevelopment of the site pursuant to a study by the City Department of City Planning which recommended overhauling the zoning regulations of the Midtown area to increase the permitted density. City Planning Commission, Midtown Zoning, March 1982 (attached as Exhibit 8 to Affidavit of Frederick S. Harris, dated October 5, 1989 (hereinafter "Harris Aff."), annexed to Defendants' Memorandum of Law in Support of Motion to Dismiss or for Summary Judgment ("Def. Mem. I")), at 27. The TBTA was designated the "lead agency" to carry out the required environmental studies under the State Environmental Quality Review Act ("SEQRA"), including a draft Environmental Impact Statement ("DEIS") and final Environmental Impact Statement ("FEIS").

After receiving fifteen proposals for development of the site, TBTA accepted Boston Properties' proposal.*fn3 The agreement among the parties (hereinafter the "New Purchase Agreement") provides, inter alia, that NYC IDA will be the owner of the commercial portion of the project, and will issue certain tax exempt bonds to Coliseum Associates for financing. The gross purchase price, i.e., not including the benefit package provided through NYC IDA, is approximately $338 million. The proceeds are to be applied toward capital and operating programs of the City's transit system.

The project has been challenged in several other lawsuits and has been scaled down twice.*fn4 The revised terms are embodied in the New Purchase Agreement (hereinafter "the Agreement"). Presently, these plaintiffs challenge the project on six grounds, two federal plus four pendent state claims: (1) alleged violations of the Federal Clean Air Act, 42 U.S.C. § 7401 et seq.; (2) Article 78 proceeding against alleged violations of the New York City Zoning Resolution, Article 1, Ch. 3 and 6 NYCRR Part 203; (3) alleged violation of NYC IDA Mandate, § 917 of New York State General Municipal Law; (4) alleged violation of NYC IDA internal regulations and policies; (5) alleged conflict of interest in violation of § 73 of State Public Officers Law; and (6) Federal Housing Act and HUD violations.

The relief plaintiffs seek is a declaration that the New Purchase Agreement is null and void and a declaration that the five resolutions of the Board of Estimate, two TBTA resolutions and one NYC IDA resolution approving, enabling, or financing the sale are void. Additionally, as to the Clean Air Act claim, plaintiffs seek an injunction against defendants from taking any steps in furtherance of the project until (1) a revised Environmental Impact Statement is prepared to show how carbon monoxide violations will be avoided; (2) the project is revised to eliminate changes to the parking garage until a special permit is obtained; and (3) a permit for that garage is granted by the New York State Commissioner of DEC. Complaint at 35-38. Plaintiffs also seek costs and attorneys' fees.

There has been little if any discovery in this case. However, the parties agree that there are no contested factual issues as to the first three causes of action, and that at least these can be resolved on summary judgment motions alone.


Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c). In testing whether the movant has met this burden, the Court must resolve all ambiguities against the movant. Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on which that party would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).*fn5 The non-moving party then has the burden of coming forward with "specific facts showing that there is a genuine issue for trial." Rule 56(e). The non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Speculation, conclusory allegations and mere denials are not enough to raise genuine issues of fact. To avoid summary judgment, enough evidence must favor the non-moving party's case such that a jury could return a verdict in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (interpreting the "genuineness" requirement).

I. Federal Clean Air Act Claim.

The Clean Air Act ("CAA") is comprehensive federal environmental law that calls upon the United States Environmental Protection Agency (hereinafter "EPA") to promulgate national ambient air quality standards ("NAAQS") for various pollutants. See 42 U.S.C. § 7409 et seq. The individual states determine how to achieve and maintain these standards by devising a State Implementation Plan ("SIP"). Id. at § 7410. The EPA enforces compliance, but the CAA also authorizes citizen suits under certain circumstances. Id. § 7604. In order for citizens properly to allege a CAA violation, they must allege that the City has specifically "repudiated" or "failed to fulfill" any part of its SIP commitment. Wilder v. Thomas, 659 F. Supp. 1500, 1507 (S.D.N.Y. 1987), aff'd, 854 F.2d 605, 610 (2d Cir. 1988).

In this citizen suit, plaintiffs allege violation of the Clean Air Act ("CAA") by repudiation or failure to fulfill three different undertakings in the New York State SIP.

  A.  The City's Commitment to Mitigate Violations and
      Exacerbations of the Carbon Monoxide Standard

1. Presence of Violations, Exceedences or Exacerbations

The portion of the current New York State SIP, dated January 1984, that relates to control of carbon monoxide and hydro-carbons in New York City, provides, in relevant part:

  To further ensure that the carbon monoxide
  standard is attained in New York City, if an EIS
  for a project proposal identifies a violation or
  exacerbation of the carbon monoxide standard, 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.

New York State Air Quality Implementation Plan, § 3.6(A) (attached to Harris Aff. as Exhibit 15).*fn6

The carbon monoxide standard relevant to the present case is the requirement that the concentration of carbon monoxide in the air shall not exceed a level of 9 parts per million (ppm) over an 8-hour period more than once a year. Complaint ¶ 82. According to the Final EIS prepared for this Project, of ten test sites near the Project, the maximum level of 9 ppm will be exceeded at one site and reached but not exceeded at two other sites.*fn7 Id. ¶ 83; FEIS Table II.H-7 (attached as Exhibit 16 to Harris Aff.). At the test site where the standard will be exceeded, the East 59th Street site, the carbon monoxide level would reach 13.3 ppm if the Project were built, but will reach 12.9 ppm even without it. FEIS Table II.H-7. The Complaint charges that required mitigation measures are omitted at these three sites, in violation of the SIP. Complaint ¶ 87(a).

Although it is true that the carbon monoxide level at many surrounding test sites will be increased as a result of the building of Columbus Center, defendants correctly point out, and plaintiffs appear to have conceded,*fn8 that the two sites at which 9 ppm has been reached but not exceeded cannot be considered a NAAQS violation under prevailing regulations. See 40 C.F.R. § 50.8(a)(1) (9 ppm eight hour level "not to be exceeded").

As to the East 59th Street test site, which the FEIS predicts will exceed air quality standards both with and without the Project, there is some dispute about whether Project has a legally cognizable impact on the eight-hour carbon monoxide concentration. The carbon monoxide concentration is calculated to one decimal place and EPA regulations call for comparisons to be made "in terms of integers with fractional parts of 0.5 or greater rounding up." 40 C.F.R. § 50.8(d). Performing the prescribed rounding for comparison purposes, the "without the project" figure of 12.9 ppm rounds up to 13 ppm, and the "with the project" figure of 13.3 ppm rounds down to 13 ppm. Under the rounding procedure authorized by 40 C.F.R. § 50.8(d), then, the carbon monoxide level at the East 59th Street site is 13 ppm in either case. The Court must conclude that under this method of calculation the Project has no legally cognizable effect on carbon monoxide emissions at that site.

Defendants point out that the same result would obtain under the State Environmental Quality Review Act ("SEQRA"), which allows for a fluctuation of plus-or-minus .5 ppm before the project is deemed to be out of compliance (the "de minimis rule"). Department of Environmental Conservation Air Guide No. 23 — Indirect Sources of Air Contamination (Guidelines for Addressing Indirect Sources), dated June 8, 1989 (attached to Harris Aff. as Exh. 17), at 6; see also Department of Environmental Conservation Policy Memorandum 78-AIR-30, dated October 5, 1978 (attached to Harris Aff. as Exh. 18). Under SEQRA's de minimis rule, a .4 ppm difference in the carbon monoxide level with and without the Project, such as that found at the East 59th Street test site, would not be legally cognizable. Plaintiffs challenge this de minimis approach (Complaint ¶¶ 84, 87(a)).

The Court acknowledges plaintiffs' concern about the de minimis allowance in that the level of carbon monoxide at the test sites may creep up by increments of .4 ppm or less, without any particular project having to accept responsibility as a direct cause of the problem. On the other hand, de minimis rules have been upheld in several contexts because they provide a way of correcting for the inherent limitations of measuring instruments and predictive models. See, e.g., Connecticut Fund for the Environment, Inc. v. EPA, 696 F.2d 147, 163-65 (2d Cir. 1982) and 696 F.2d 169, 177 (2d Cir. 1982); California Air Resources Board v. EPA, 774 F.2d 1437, 1443 (9th Cir. 1985); Air Pollution Control Dist. v. EPA, 739 F.2d 1071, 1092 (6th Cir. 1984); Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979).

2. Fulfillment of Commitment to Combat Exceedences

Plaintiffs' strongest argument in favor of their claim to enjoin the Project under the CAA is that the EPA requires that new projects must mitigate existing carbon monoxide violations, even those carbon monoxide violations not of the project's own making. U.S. EPA Notice of Proposed Disapproval of the State of New York's Revised SIP, dated September 12, 1988 (attached as Exh. F to Pl.Mem. I) ("the SIP commitment does not make [a] distinction between project-caused and nonproject caused CO violations"). The appropriate remedy for a failure of this Project to provide for the mitigation of existing carbon monoxide violations, according to plaintiffs, is halting the Project. Pl.Mem. I at 26-27 & n. 9; see 42 U.S.C. § 7604(a) (Court may issue orders enforcing emission standards under the Act).

Defendants acknowledge that § 3.6(A) of the SIP "requires [the City] to commit to assure that attainment measures will be implemented not only for exceedences caused by the Project but also for exceedences not caused by the Project which are revealed through the EIS process." Def. Mem. III at 4. However, they contend that the existence of a City area-wide control program is sufficient to demonstrate the City's continuing commitment under the SIP to assure the implementation of mitigation measures for NAAQS violations disclosed in the project EIS. The Court will therefore direct its inquiry into the City's general efforts to combat exceedences not caused by the Project which are revealed through the EIS process. See Atlantic Terminal Urban Renewal Area Coalition v. New York City Dept. of Environmental Protection (hereinafter "ATURA"), 740 F. Supp. 989, 991 (S.D.N.Y. 1990).

In discussing the Project's conformance with this commitment, the Coliseum EIS relies entirely upon a city-wide carbon monoxide control study sponsored by the City Department of Transportation, entitled Relief of Traffic Congestion and Air Pollution (hereinafter "ROTCAP") (also known as the Traffic Congestion and Pollution Relief Study, or "Traffic CPR").*fn9 FEIS at II.H-18 This study, ongoing since 1988, is part of the City's area-wide program to address carbon monoxide problem areas, or "hotspots".*fn10 Thus the Court must assess whether the FEIS, and the Traffic CPR Study it cites, represent a "reasonable attempt by the City to achieve the NAAQS as soon as possible," ATURA, 740 F. Supp. at 998, or whether instead the FEIS and Traffic CPR are so deficient in this respect as to constitute a repudiation or failure to fulfill the SIP commitment. Wilder, 659 F. Supp. at 1507.

a. Operative Date for Attaining NAAQS

Before resolving the issue of whether the Traffic CPR study cited in the Final EIS satisfies New York's SIP commitment to meet NAAQS for carbon monoxide, the Court must first resolve the question it reserved ante, n. 7, of the date by which NAAQS must be attained in light of the 1990 CAA amendments. The State's 1984 SIP committed to implement measures to attain NAAQS by December 1987 and maintain it thereafter. In December 1987, the City and State, not in compliance, agreed to implement measures necessary to ensure that carbon monoxide standards would be attained by August 31, 1988 and maintained thereafter. They failed to make this deadline as well.

In 1990 this Court found, in another CAA lawsuit challenging a different building project in New York City, that the December 1987 NAAQS attainment date has given way to a de facto extension by the EPA. ATURA, 740 F. Supp. at 997. In light of legislation then pending in Congress which would have the effect of extending the deadline for NAAQS compliance, the ATURA Court found in an exercise of its equitable discretion that the City's failure to meet the December 31, ...

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