Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 C 3027 Bernard M. Decker, Judge. Petition for Review of an Order of the Environmental Protection Agency.
Cummings, Sprecher and Tone, Circuit Judges.
In the principal case before us in these consolidated proceedings, No. 74-1271, plaintiffs sue to block the construction of a shopping center and the extension and widening of the road along which the shopping center is to be built, relying upon the Clean Air Amendments of 1970, the National Environmental Protection Act, and the Equal Protection Clause of the Fourteenth Amendment. They seek to compel the Administrator of the Environmental Protection Agency to promulgate "indirect source" and "significant deterioration" regulations which they hope would preclude the construction of the shopping center and the road expansion (Counts I and II) and to enjoin the road expansion until the Department of Transportation has filed an environmental impact statement pursuant to the National Environmental Protection Act (Count III). Plaintiffs also allege that the Village of Northbrook has denied them equal protection by the adoption of a zoning ordinance which permits the construction of the shopping center (Count IV).
The District Court dismissed the claims under the Clean Air Amendments for failure to comply with the 60-day notice requirement of section 304, 42 U.S.C. § 1857h-2, for failure to state a claim on which relief can be granted, and on the ground that some of the relief requested was already the subject of orders issued by other federal courts. Finding it undisputed that there was no federal involvement in the road expansion project, the court granted summary judgment on the claim that an environmental impact statement should have been filed. The equal protection claim was also held to be without merit. The court entered an order dismissing the action, City of Highland Park v. Train, 374 F. Supp. 758 (N.D. Ill. 1974), from which plaintiffs appeal and which we affirm.
Plaintiffs are two municipalities adjacent to the site of the proposed shopping center, a non-profit corporation dedicated to protecting the environment in the area, and various individuals who reside near the site. The defendants are the Administrator of the Environmental Protection Agency, the agency itself, the Secretary of the Department of Transportation, the department itself, the Department of Highways of Cook County, Illinois, the developers of the shopping center, proposed tenants of the shopping center, the Village of Northbrook, in which the shopping center will be located, and the trustees of the village.
The right of way of Lake-Cook Road extends from Lake Michigan along the entire boundary between Lake and Cook Counties to the western end of the boundary and continues on west to the Fox River. Between Milwaukee Avenue and Rand Road, the road is not completed. Where it is completed, it is, for the most part, two lanes wide. In 1967 the Cook County Highway Department initiated plans to expand the completed portions of the road to four lanes and to construct a four-lane extension on the right-of-way where no actual roadway presently exists.
In January, 1973, certain of the defendants announced a plan for the construction of a shopping center on the south side of Lake-Cook Road between Skokie Highway and Waukegan Road. The shopping center, according to the complaint, will occupy one million square feet, have a parking lot accommodating 5,000 cars, and generate 28,400 vehicle trips per day. Ninety percent or more of this traffic will be carried by Lake-Cook Road, the only through-street which provides access to the shopping center. Plaintiffs allege that this traffic "will overwhelm even the proposed four lane expanded roadway," and cause "intolerable" congestion at the intersections of Lake-Cook Road and Skokie Highway and Waukegan Road. As a result, residents of the area will be subjected to substantial "noise and discomfort in the use of their homes and in the use of the streets in their community" and will be exposed to increases in the concentration of carbon monoxide in the ambient air by more than 66 percent over existing levels.
The Clean Air Amendments and Their Implementation
To explain plaintiffs' claims under the Clean Air Amendments of 1970, it is necessary to begin by summarizing pertinent parts of that legislation and its implementation by actions of the Administrator and the states and by certain court decisions. The background and a more complete history of the amendments and their implementation to date appear in Mr. Justice Rehnquist's opinion for the Supreme Court in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S. Ct. 1470, 43 L. Ed. 2d 731, 43 U.S.L.W. 4467 (1975).
When the states did not act to fulfill their "primary responsibility" for prevention of air pollution under earlier federal clean air legislation, "Congress reacted by taking a stick to the states in the form of the Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat. 1676, enacted on December 31 of that year." Train v. Natural Resources Defense Council, Inc., supra, 43 U.S.L.W. at 4468. The 1970 Amendments established a program to control air pollution to be carried out by the federal government and the states. The parts of the Amendments pertinent here may be summarized as follows:
The Administrator was required, before specified dates, to publish a list of air pollutants and issue "air quality criteria" containing information about each listed pollutant and its effects on the air. (Section 108, 42 U.S.C. § 1857c-3.) He was also required to establish national "ambient air quality standards" for each air pollutant for which air quality criteria were issued. (Section 109, 42 U.S.C. § 1857c-4.) The states have primary authority to establish "implementation plans" to achieve these standards, but these plans are subject to review by the Administrator. (Section 110, 42 U.S.C. § 1857c-5.)
Two sets of standards were to be prescribed by the Administrator, "primary standards," the "attainment and maintenance of which, in the judgment of the Administrator, based on [air quality] criteria and allowing an adequate margin of safety, are requisite to protect the public health;" and "secondary standards," which "shall specify a level of air quality the attainment and maintenance of which, in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." (Section 109(b), 42 U.S.C. § 1857c-4(b).) The Administrator prescribed these standards within the time allowed him by the Act.
Within nine months after the Administrator's promulgation of the national standards, each state was to submit to him a plan providing for the "implementation, maintenance, and enforcement" of the standards. (Section 110(a)(1), 42 U.S.C. § 1857c-5(a)(1).) Each state plan was required to provide for the attainment of the national primary standards "as expeditiously as practicable" and not later than three years after the date the Administrator approved the plan. (Section 110(a)(2)(A)(i), 42 U.S.C. § 1857c-5(a)(2)(A)(i).) The national secondary standards were to be met within a "reasonable time" to be specified in the plan. (Section 110(a)(2)(A)(ii), 42 U.S.C. § 1857c-5(a)(2)(A)(ii).) Each state 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." (Section 110(a)(2)(B), 42 U.S.C. § 1857c-5(a)(2)(B).) Other prerequisites to approval by the Administrator are set forth in the Act. (Section 110(a)(2)(C) through (H), 42 U.S.C. § 1857c-5(a)(2)(C) through (H).)
Within four months after the date a state plan was required to be submitted, the Administrator was required to review the plan to determine whether it satisfied the statutory requirements and to approve or disapprove the plan or each portion thereof. (Section 110(a), 42 U.S.C. § 1857c-5(a).) If the Administrator determined that a state's plan or any portion thereof did not satisfy the statutory requirements, he was to disapprove the plan, or the offending portion thereof, and, within six months after the date the plan was required to be submitted, promulgate his own implementation plan or portion thereof for that state. (Section 110(c)(1), 42 U.S.C. § 1857c-5(c)(1).)
Significant Deterioration Regulations
During the period he was reviewing state plans, the Administrator questioned his authority to require those plans to protect against "significant deterioration" of air quality in areas in which the air was cleaner than required by the national standards, when that significant deterioration would not result in pollution violative of the national standards. He took the position that he would not demand such provisions in state plans. See Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 254 (D.D.C. 1972), aff'd per curiam, 4 E.R.C. 1815 (D.C. Cir. 1972), aff'd by an equally divided Court sub nom. Fri v. Sierra Club, 412 U.S. 541, 37 L. Ed. 2d 140, 93 S. Ct. 2770 (1973). In the Sierra Club case the court held, on motion for preliminary injunction, that the Administrator had a non-discretionary duty to protect the air quality from significant deterioration and issued a preliminary injunction prohibiting him from approving state plans "which allow pollution levels of clean air to rise to the secondary standard level of pollution." 344 F. Supp. at 256.*fn1 The court ordered the Administrator to promulgate proposed significant deterioration regulations within six months as to any state plan which permitted or failed to take measures sufficient to prevent significant deterioration. 344 F. Supp. 253, 2 E.L.R. 20262, 20263.
As a result of that decision, the Administrator again reviewed all state implementation plans and disapproved them to the extent that they failed to prevent significant deterioration of air quality. (40 C.F.R. § 52.21 (1974), 37 Fed. Reg. 23,836 (Nov. 9, 1972).) One of the plans affected was that of Illinois, which had been submitted to the Administrator on January 31, 1972, and given partial approval on May 26, 1972. (40 C.F.R. § 52.722 (1974), 37 Fed. Reg. 10,842 (May 31, 1972).) In response to his duty under the court's order in the Sierra Club case the Administrator proposed (38 Fed. Reg. 18,986 (July 16, 1973)) and reproposed (39 Fed. Reg. 31,000 (Aug. 27, 1974)) rules on the prevention of significant air quality deterioration. Eventually he promulgated regulations for two of the six air pollutants for which he had earlier promulgated national ambient air quality standards under his statutory duty.*fn2 (39 Fed. Reg. 42,510 (Dec. 5, 1974).) These regulations are intended to prevent significant deterioration in the quality of air for two pollutants, particulate matter and sulfur dioxide, by limiting increases in the concentrations of those pollutants in areas where the present level of pollution is less than required by the national ambient air quality standards. This is to be accomplished by dividing those areas in which the level of pollution does not presently exceed the national ambient air quality standards into three classes in which increases in concentration of the two pollutants are limited by different amounts. The Administrator originally classified all areas, but the states, after a public hearing and subject to other requirements, may submit to the Administrator proposals for reclassification of areas. No final regulations have been promulgated for the other four pollutants as of yet. The Administrator, therefore, has not yet complied with the Sierra Club order.
Indirect Source Regulations
When the Administrator gave partial approval to the Illinois implementation plan on May 26, 1972, he also granted to Illinois, as he did to a number of other states, extensions until February 15, 1973, to submit the transportation portion of its implementation plan. Several other states were given until mid-1977 to attain the national primary standards. (37 Fed. Reg. 10,842 (May 31, 1972).) The Court of Appeals for the District of Columbia, on a petition for review, held that this extension was not authorized by the Act, and also found that the record did not show whether the Administrator had conducted a state-by-state determination on the efficacy of the state plans to provide for the maintenance of the primary and secondary standards beyond May 31, 1975. National Resources Defense Council, Inc. v. EPA, 154 U.S. App. D.C. 384, 475 F.2d 968, 970, 971-972 (1973). The court established a new time schedule under which the Administrator was to review the maintenance provisions of the state plans and disapprove those which he determined did not contain sufficient measures for maintenance of the primary standard. (Id. at 972.) In this re-examination, the Administrator found that none of the state plans, including that of Illinois, contained adequate provisions for insuring the maintenance of national standards, but granted the states another opportunity to develop adequate programs. (40 C.F.R. § 52.22(a) (1974), 38 Fed. Reg. 6280 (March 8, 1973).)
The Administrator, pursuant to the order of the Court of Appeals for the District of Columbia in Natural Resources Defense Council, Inc. v. EPA, then promulgated regulations to insure the maintenance of national standards by requiring state implementation plans to contain procedures for review of any new stationary source or modification that might "interfere with attainment or maintenance of a standard either directly because of emissions from it, or indirectly, because of emissions resulting from mobile source activities associated with it." (40 C.F.R. § 51.18 (1974), 38 Fed. Reg. 15,834, 15,836 (June 18, 1973).) He suggested guidelines to assist the states in complying with the requirements of section 51.18. (See Appendix O to 40 C.F.R. § 51.18.)
The Administrator was also required by National Resources Defense Council, Inc. v. EPA, to promulgate indirect source review regulations if states either failed to submit such regulations on their own or submitted inadequate regulations. (475 F.2d at 971.) In response to that requirement the Administrator proposed regulations (38 Fed. Reg. 29,893 (Oct. 30, 1973)), and, after public hearings in 43 states, promulgated them. (40 C.F.R. § 52.22 (1974), 39 Fed. Reg. 7270 (Feb. 25, 1974).) He also determined that since the plans of most states, including Illinois, contained inadequate provisions for review of indirect sources as required by section 51.18, the provisions of section 52.22(b) would be incorporated by reference and made a part of each of those plans. (See, e.g., 40 C.F.R. § 52.736 (1974).)
An indirect source is defined by the regulation as "a facility, building, structure, or installation which attracts or may attract mobile source activities that results in emissions or a pollutant for which there is a national standard," for example a "parking facility." (40 C.F.R. § 52.22(b)(i) (1974).) The regulation applies to any indirect source on which construction or modification is to commence after December 31, 1974. The Administrator later amended the indirect source regulations in respects not material here. (39 Fed. Reg. 25,292 (July 9, 1974).)
The Motion to Dismiss the Appeal
A motion by the defendants who are the developers of the shopping center to dismiss the appeal in No. 74-1271 against them and a prospective tenant was taken under advisement with the case. These defendants argue that a 1974 amendment to the Clean Air Act (42 U.S.C. §§ 1857c-5(c)(2)(C), (D)) and the promulgation of indirect source regulations moot Count I, the only part of the case concerning them, and that no case or controversy between them and the plaintiffs is raised in the plaintiffs' briefs because of failure to comply with Rule 28(a)(5), Fed. R. App. P., which requires a short statement of the relief sought. The mootness ground is without merit, because plaintiffs seek in Count I not only promulgation of indirect source regulations, but also an injunction against construction of the shopping center until proper regulations have been promulgated. Since the developer defendants and the tenant defendants were necessary parties in a claim seeking such an injunction, the case is not moot as to them. The failure to state the relief sought against these defendants is not a basis for dismissal of the appeal as to them in the circumstances of this case. We therefore deny the motion to dismiss and turn to the merits of the appeal.
Counts I and II: The Regulations
In Count I of their complaint plaintiffs allege that the Administrator has been in violation of the provisions of the Act requiring him to issue two kinds of regulations: (a) significant deterioration regulations, preventing the significant deterioration of air quality in areas with air cleaner than national standards (as stated above, such regulations as to two of the six pollutants in question have now been promulgated); and (b) indirect source regulations, preventing violations of the national air quality standards by indirect sources (as stated above, these regulations have now been promulgated). They seek an order requiring him to promulgate those regulations and to halt further construction of the shopping center until its plans have been reviewed by the Administrator under both sets of regulations he is required to promulgate. In Count II the plaintiffs reallege that the Administrator has been in violation of his statutory duty to promulgate significant deterioration and indirect source regulations. In this count, however, they seek to halt construction of the Lake-Cook Road expansion and improvement project until its plans have been reviewed by the Administrator ...