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CITY OF HIGHLAND PARK v. TRAIN

March 15, 1974

THE CITY OF HIGHLAND PARK, A HOME RULE MUNICIPAL CORPORATION, ET AL., PLAINTIFFS, VILLAGE OF DEERFIELD, ADDITIONAL-PLAINTIFF, 1-3-74,
v.
RUSSELL E. TRAIN, AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



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

    MEMORANDUM OPINION

In this multi-count action, plaintiffs assert that they have been denied, or are in imminent danger of being denied, various federal Constitutional and statutory rights through the action and inaction of various federal, county and private defendants. In general, the primary impetus for this lawsuit is the alleged violation by federal officials and agencies of their duties under the Clean Air Act, as amended, 42 U.S.C. § 1857 et seq., and the National Environmental Protection Act, 42 U.S.C. § 4321 et seq., by failing to subject a particular highway expansion project and an adjacent shopping center complex to the requirements of those statutes. Plaintiffs seek declaratory and injunctive relief ordering the governmental defendants to take action to meet their statutory obligations and prohibiting further construction of the road expansion or shopping center in the interim.

Plaintiffs consist of the cities of Highland Park and Deerfield, municipal corporations in the immediate area of the shopping center site; the Tri-Suburban Defense Counsel, a non-profit Illinois corporation, whose membership includes residents of Highland Park, Deerfield and Northbrook interested in protecting the physical and aesthetic environment of those cities; and various residents of Highland Park and Glenbrook Countryside. The individual plaintiffs live immediately north or west of the shopping center construction site.

In December, 1973, a hearing was held on plaintiffs' motion for a preliminary injunction and on defendants' motions to dismiss for lack of subject matter jurisdiction, or, in the alternative, for failure to state a claim upon which relief could be granted. The parties having exhaustively briefed the issues raised at the hearing, the matter is presently before the court for a decision of those motions.

I. Background to the Lawsuit

The facts culminating in this lawsuit, as gathered from the papers on file, are as follows: Lake-Cook Road constitutes the boundary line between Lake and Cook Counties. For most of its length, the road consists of two lanes. Starting in 1967, the Cook County Highway Department began to develop plans to expand the road to a four-lane highway and also to construct a four-lane extension where no road presently exists. Although it appears that, at that time, an expanded Lake-Cook Road was deemed to be capable of handling projected traffic increases for the next 20 years or more, plaintiffs claim that these estimates did not foresee, nor take into account, the increment in average daily traffic that would be caused by the construction of a large shopping center complex on the Road.

In January, 1973, the defendant developers*fn1 submitted a proposed plan for the construction of a large shopping center on Lake-Cook Road between Skokie Highway and Waukegan Road.*fn2 Because of the location of the proposed site in conjunction with the Tri-State Tollway, which blocks all north-south through street access in the area except for Skokie Highway and Waukegan Road, the only main thoroughfare providing access to the shopping center will be Lake-Cook Road. Consequently, plaintiffs estimate that 90% of the traffic generated by the proposed shopping center will have to use Lake-Cook Road.*fn3

Plaintiffs claim that expected traffic growth plus the increase in vehicle trips to be generated by the shopping center*fn4 will soon overwhelm the Lake-Cook Road expansion and will create especially acute traffic congestion at the intersections of Lake-Cook Road with Skokie Highway and Waukegan Road.

These developments allegedly will subject plaintiffs to a substantial increase in "noise and discomfort in the use of their homes and in the use of the streets in their community." More specifically, plaintiffs forecast that the increase in traffic will raise the concentration of carbon monoxide in the ambient air by more than 66% over existing levels.

II. Counts I and II

These counts comprise the heart of this lawsuit. Here plaintiffs allege that the Administrator of the Environmental Protection Agency ("EPA") has failed to promulgate regulations in conformity with a timetable set forth in the Clean Air Act Amendments of 1970 and proposes to grant projects which begin construction prior to May 15, 1974, exemptions from that statute's regulations, also in violation of the statute.

A. The Clean Air Act Amendments of 1970*fn5

The Clean Air Act was enacted, inter alia, "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare." 42 U.S.C. § 1857(b)(1). The program established to control air pollution divides responsibility for the task between the states and the federal government. The Administrator of the EPA has exclusive responsibility for establishing "national ambient air quality standards,"*fn6 while the states have primary authority, subject to EPA review, for establishing "implementation plans" to achieve these standards. In spite of the complexity and breadth of this undertaking, the Act established an expedited schedule for EPA promulgation of air quality standards, the submission of state implementation plans, and the development of substitute federal programs to replace deficient state plans.

Thus, within 30 days after the passage of the Act, the Administrator was to publish proposed ambient air quality standards for each pollutant for which "air quality criteria had been issued." 42 U.S.C. § 1857c-4(a)(1)(A).*fn7 After a maximum of 90 days for public comment upon these proposals, the Administrator was required to issue final air quality standards. 42 U.S.C. § 1857c-4(a)(1)(B). Both of these deadlines were met by the EPA.

Within nine months after the promulgation of the national ambient air standards, each state was to submit to the Administrator a plan which provided for the "implementation, maintenance, and enforcement" of these standards. 42 U.S.C. § 1857-5(a)(1). The Administrator was to review the state plans within four months to assure that they satisfied the statutory requirements. 42 U.S.C. § 1857c-5(a)(2). Each plan was to provide for the attainment of the national primary standards "as expeditiously as possible" but in no case later than three years after the date of EPA approval of the plan. 42 U.S.C. § 1857c-5(a)(2)(A)(i). Attainment of national secondary standards was to occur with a "reasonable time" to be specified in the plan. 42 U.S.C. § 1857c-5(a)(2)(A)(ii). Further, each plan was to include "emission limitations, schedules and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including, but not limited to, land-use and transportation controls." 42 U.S.C. § 1857c-5(a)(2)(B). The Act also sets forth a number of other specific conditions required before the approval of the EPA was to be forthcoming. If the plan or any portion thereof was determined not to satisfy the statutory conditions, the Administrator was required to disapprove the plan or portion. In such a situation, he had six months from the date of submission, or two months from the date of disapproval, to promulgate his own implementation plan, or portion, for the state involved. 42 U.S.C. § 1857c-5(c).

Prior to and during the period in which the state plans were under review by the EPA, the Administrator repeatedly expressed doubts about his authority to require state plans to protect against "significant deterioration" of existing clean air regions*fn8 and was on record as stating that he would not demand such provisions in state plans. See Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 254 (D.C.D.C.), aff'd per curiam (D.C.Cir. 1972), aff'd by an equally divided court sub nom., Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973). The Sierra Club brought suit in the U.S. District Court for the District of Columbia to enjoin the Administrator from approving any state plans omitting provisions on significant deterioration, claiming that such action would constitute a failure to perform a non-discretionary duty in violation of the Act. See 42 U.S.C. § 1857h-2(a). After examining the stated purpose of the Clean Air Act Amendments of 1970, the legislative history of the Act and its predecessor, and pertinent administrative regulations, see 344 F. Supp. at 255-256, the court held for the plaintiffs, concluding that:

The Illinois plan was duly submitted on January 31, 1972, and partial EPA approval was forthcoming on May 31, 1972, within the four-month period prescribed by the statute. However, Illinois and a number of other states were granted an extension until February 15, 1973, to submit the transportation control portions of their implementation plans. See Natural Resources Defense Council v. E.P.A., 154 U.S.App.D.C. 384, 475 F.2d 968, 970 (1973) (hereinafter referred to as Natural Resources).

Suit was immediately instituted in the U.S. Court of Appeals for the District of Columbia Circuit challenging these extensions, inter alia. Natural Resources, supra. The court determined that, although the Administrator had "acted in the best of faith in attempting to comply with the difficult responsibilities imposed upon him by Congress," 475 F.2d at 970, he had failed to conform to the strict time requirements of the Clean Air Act in granting the extensions with respect to the transportation control aspects of the state plans. In addition, the court found insufficient evidence in the record with respect to whether the EPA had conducted a state-by-state determination on the efficacy of the state plans to provide for maintenance of the primary and secondary standards beyond May 31, 1975.*fn9 In order "to remedy these violations of the Act," the court established its own time schedule under which the EPA was to review the state plans as to their maintenance provisions and to disapprove those which he determined did not contain sufficient measures. Pursuant to this re-examination, the state plans of Illinois and all other states were found to be deficient.

However, the states were granted a second opportunity to develop adequate programs. In guidelines to the states to aid them in developing these plans, the Administrator noted that several mechanisms were available to mitigate the impact of community growth on air quality maintenance. For example, maintenance could be guaranteed by then-required provisions to review the construction or modification of a stationary source of air pollution where emissions from that source would result in interference with maintenance. 40 C.F.R. § 51.18. See 39 F.R. 7270 (February 25, 1974). But the Administrator warned such measures alone would not be adequate to ensure maintenance. Accordingly, he advised that the stationary source review procedures be expanded by the states to cover "complex" or "indirect" sources of air pollution — "facilities [like the shopping center in question here] which do not themselves emit pollutants, but which attract increased motor vehicle activity and thereby may cause violations of an implementation plan's transportation control strategy or may prevent or interfere with the attainment of an ambient air quality standard." 39 F.R. 7270 (February 25, 1974). Notwithstanding these suggestions, the states failed to include adequate complex source provisions and the Administrator again was compelled to disapprove the state plans. See 38 F.R. 6290 (March 8, 1973). At the time of the institution of this suit, and pursuant to the time schedule adopted by the court in Natural Resources, the EPA was in the process of holding public hearings in 43 states to receive comment on complex source regulations.*fn10

B. The Issues in Counts I and II

In Count I, plaintiffs complain of the continuing failure of the Administrator to promulgate federal implementation regulations to correct the deficiencies of the Illinois plan within the time period established by the Act. Since disapproval, rather than approval, should have occurred on May 31, 1972, and since the Act granted the Administrator two months thereafter to issue substitute implementation plans, plaintiffs assert that the Administrator has been in violation of the Act since July 31, 1972. Specifically, plaintiffs emphasize the failure of the Administrator to issue regulations to prevent the significant deterioration of air quality in areas, such as the proposed shopping center location, with air cleaner than national standards or to prevent violations of the standards by complex sources. Plaintiffs seek an order requiring the EPA to promulgate regulations addressed to those problems and halting further construction of the shopping center until the plans therefor have been reviewed by the Administrator under the foregoing regulations.

Count II asserts that the expansion of the Lake-Cook Road, "as impacted by the traffic load" to be generated by the shopping center complex, will cause significant degradation of air quality in the neighborhood and will interfere with the maintenance of air quality standards. Plaintiffs repeat their Count I prayer for a mandatory injunction upon the Administrator to issue the overdue regulations and, further, ask that the road improvement be halted until such time as the regulations are promulgated and the road project is subjected to federal review thereunder.

In response, the defendants have submitted numerous challenges to the jurisdictional bases alleged in the complaint. Each of these will be addressed in turn.

1. Jurisdiction Under the Clean Air Act Amendments of 1970.

Initially, defendants argue that plaintiffs are in the wrong court because the Act provides an exclusive forum in the Courts of Appeals to review allegations of the type made in this complaint. The section of the statute upon which defendants rely provides in relevant part:

  "A petition for review of the Administrator's action
  in approving or promulgating any implementation plan
  under section 1857c-5 . . . may be filed only in the
  United States Court of Appeals for the appropriate
  circuit. Any such petition shall be filed within 30
  days from the date of such promulgation or approval,
  or after such date if such petition is based solely
  on grounds arising after such 30th day."
  42 U.S.C. § 1857h-5(b)(1).

Strong arguments are presented by both parties as to the applicability of this provision to the situation at bar. Plaintiffs claim that this is not a suit to review the Administrator's action in "approving or promulgating any implementation plan" because the complaint specifically alleges that the Administrator disapproved the Illinois plan under the guidelines of the court in Natural Resources, and has not issued a substitute plan. On the other hand, the EPA and the developers argue that the suit falls within the purview of that section. In support thereof, those defendants contend that the origin of this lawsuit can be traced to the Administrator's approval of the Illinois plan on May 31, 1972, and that any regulation enacted will become part of the state plan.*fn11

To the extent that judicial interpretations of 42 U.S.C. ยง 1857h-5(b)(1) are irreconcilable, this court need not choose among them, for, even assuming that this action is cognizable in this court, plaintiffs are barred from this forum for failing to observe ...


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