4 Hofstra Envtl. L. Dig. 1 (1987)

handle is hein.journals/hofe4 and id is 1 raw text is: HOFSTRA
ENVIRONMENTAL LA W DIGEST
A Publication of the Environmental Law Society
Hofstra University School of Law

Volume 4, No. I

AIR
Council of Commuter Organizations v. Thomas,
799 F.2d 879 (2d Cir. August 28, 1986).
Although attaining cleaner air is the purpose of the
Clean Air Act, 42 U.S.C.  7401-7626 (1982 & Supp. II
1984), the language of the 1977 Moynihan-Holtzman
Amendment (Amendment) to the Act,  7410(c)(5),
engendered expectations that requiring some states to meet
air quality control standards also meant requiring them to
make improvements in mass transit. Under the Amend-
ment, states which had previously promised in State Im-
plementation Plans (SIPs) to use bridge tolls to accomplish
the automobile emissions reductions required by the
Act, were permitted to remove those tolls if they (i)
establish, expand, or improve public transportation
measures to meet basic transportation needs. 42 U.S.C.
 7410(c)(5)(B). To replace the tolls, states were also re-
quired to (ii) implement transportation control measures
necessary to attain and maintain national ambient air
quality standards. Id.
The primary issue in the present case is whether a state,
in fulfilling its obligation to make its air cleaner, can meet
the basic transportation needs of its cities without adop-
ting mass transit improvements.
This case is the second of two petitions for review
brought by the Council of Commuter Organizations
before the United States Court of Appeals for the Second
Circuit seeking to overturn the United States Environmen-
tal Protection Agency's (EPA) approvals of SIPs submit-
ted by New York State. The first such petition was brought
by the Council in 1982. The second was brought in 1986
after EPA granted final approval to a 1982 SIP.
The 1982 petition for review challenged EPA's condi-
tional approval of the SIP revision submitted by New York
in 1979. Council of Commuter Organizations v. Gorsuch,
683 F.2d 648 (2d Cir. 1982) (CCO I). That revision relied
mostly on transit fare stabilization to achieve emissions
reductions equivalent to those expected from bridge tolls.
It included forty mass transit improvement projects to
satisfy what was then believed to be the Amendment's re-
quirement of improving transit to meet basic transporta-
tion needs. See 42 U.S.C.  7410(c)(5)(B)(i). EPA initially
proposed to disapprove the transit improvement part of
the SIP, citing insufficient schedules and details for pro-
gress measurement, but then conditionally approved the
entire submission in the fall of 1981. Council of Commuter
Organizations v. Thomas, 799 F.2d 879, 883 (2d Cir. 1986)
(CCO II). To receive final approval, New York was re-
quired to submit more specific details of transit improve-
ment measures, as well as reports on the impact of pending
fare increases on air quality.

Petitioner, Council of Commuter Organizations,
challenged EPA's conditional approval of New York's
1979 SIP by using essentially the same language EPA had
used in its conditional approval. The Council charged that
the 1979 SIP contain[ed] insufficient implementing
schedules and details. CCO I, 683 F.2d at 650. The court
expressed its view on the issue of whether it was more ap-
propriate for EPA to issue a conditional approval, as op-
posed to a conditional disapproval of the 1979 SIP, by say-
ing it was troubled by the generous four year period
that New York was given to submit a more detailed SIP
revision, well after the date . . . Congress specified the
revision should be made. CCO II, 799 F.2d at 883. Yet
the court held, among other things, that by permitting a
state to supply details and schedules of improvements in
two stages EPA was not unreasonable nor acting contrary
to the purposes of the Clean Air Act. The court denied the
petition, but premised its approval of EPA's conditional
approval on EPA's adherence to judicially created re-
quirements designed to assure adequate review of New
York's forthcoming SIP revision for final approval. Not
surprisingly, one such requirement was inspection of
detai!s and schedules to insure that they were sufficiently
specific to enable the monitoring of New York's progress
toward meeting its basic transportation needs. CCO ,
F.2d. at 663.
In a separate development in 1980, EPA and the United
States Department of Transportation proposed a policy
describing the basic transportation needs requirement
of the Moynihan-Holtzman Amendment. The proposed
policy presumably issued in response to New York's
criticism that EPA failed to adequately define these needs.
CCO II, 799 F.2d at 882. EPA defined basic transporta-
tion needs as the need to maintain mobility where
transportation control strategies are implemented. Id.
Apparently, none of the parties to the 1982 petition ever
stopped to think of the impact this proposed policy might
have on attaining improvements in mass transit in New
York City. For its part, New York was quick to incor-
porate the proposed policy in its SIP submission for final
approval. It simply abandoned all promised plans to im-
prove mass transit. The State argued that since existing
transit services in New York City were underloaded, it
would be able to maintain the mobility of drivers diverted
by transportation control strategies without having to
resort to transit improvements. Its finding of underloaded
services was based on its calculation that subway rider-
ship was down by 300,000 from 1979 levels. CCO HI, 799
F.2d at 884.
The 1982 final SIP revision initially met with a proposed
disapproval from EPA. The agency found failure to ade-
quately reduce emissions, and additionally was not con-

Spring 1987

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