967 F.

2d 764
35 ERC 1552, 22 Envtl. L. Rep. 21,154

COALITION AGAINST COLUMBUS CENTER; Selma

Arnold; Ross
Graham; Al Hehn; Columbus Center Travel, Ltd.;
Coalition Against Lincoln West, Inc.,
Plaintiffs-Appellees-Cross-Appellants,
v.
CITY OF NEW YORK; the Board of Estimate of the City of
New
York; Department of Housing Preservation & Development of
New York City; Metropolitan Transportation Agency;
Triborough Bridge and Tunnel Authority; the New York City
Industrial Development Agency; Coliseum Associates,
Defendants-Appellants-Cross-Appellees.
Nos. 564, 577 and 701, Dockets 91-7746, 91-7754 and 91-7846.

United States Court of Appeals,

Second Circuit.
Argued Dec. 13, 1991.
Decided June 22, 1992.

Linda H. Young, New York City (Victor A. Kovner, Corp. Counsel,

Antonia Levine, Daniel Turbow, Ellen B. Fishman, Jerome Tarnoff,
Theodore S. Steingut, Berger Steingut Tarnoff & Stern, on the brief), for
Mun. defendants-appellants-cross-appellees.
Robert P. LoBue, New York City (Stephen P. Younger, David C.
McIntyre, Steven Russo, Patterson, Belknap, Webb & Tyler, on the brief),
for defendants-appellants-cross-appellees Metropolitan Transp. Authority
and Triborough Bridge & Tunnel Authority.
Gaines Gwathmey III, Jay Cohen, Robert A. Atkins, Joseph Brennan,
Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Paul Selver,
Elise Wagner, Brown & Wood, submitted a brief), for defendantappellant-

cross-appellee Coliseum Associates.

John T. Van Der Tuin, New York City (Stuits, Balber, Horton & Slotnik,
Jerry H. Goldfeder, Pesetsky, Goldfeder & Bookman, on the brief), for
plaintiffs-appellees-cross-appellants.
Before: NEWMAN, KEARSE, and CARDAMONE, Circuit Judges.
JON O. NEWMAN, Circuit Judge:

This appeal involves an attempt by various citizen groups, individual

neighbors, and local businesses to block the sale and redevelopment of a 3.4acre site on the western side of Manhattan's Columbus Circle for alleged
noncompliance with applicable environmental and regulatory requirements.
The site is currently occupied by the New York City Coliseum and an adjacent
26-story office building. Defendants are the developer of the site, Boston
Properties, acting through defendant Coliseum Associates, as well as numerous
municipal entities--the City of New York (the "City"), the Board of Estimate of
the City of New York, the Department of Housing Preservation and
Development of the City of New York, the Triborough Bridge and Tunnel
Authority ("TBTA"), the Metropolitan Transportation Authority (the parent of
TBTA), and the New York City Industrial Development Agency ("NY IDA").
The proposed project would replace the existing buildings and underground
parking garage at the site with a new garage and a residential, office, and retail
building of more than 70 floors.

Defendants appeal from the July 10, 1991, judgment of the District Court for
the Southern District of New York (Shirley Wohl Kram, Judge), granting
summary judgment to plaintiffs on their claim under the so-called "citizen suit"
provision of the Clean Air Act ("CAA" or "the Act"), 42 U.S.C.A. 7604
(West 1983 & Supp.1992), to require the defendants to comply with the Act as
implemented by New York's State Implementation Plan. Coalition Against
Columbus Circle v. City of New York, 769 F.Supp. 478 (S.D.N.Y.1991).
Defendant Coliseum Associates appeals from the portion of the judgment
holding it jointly and severally liable for a potential fine of at least $15 million
for future violations of the Act. Plaintiffs cross-appeal from the dismissal on
summary judgment of their pendent claims alleging that: (1) the garage portion
of the development required a permit pursuant to N.Y.Comp.Codes R. & Regs.
tit. 6, Part 203 (1983) ("NYCCRR"); (2) if a Part 203 permit is not required, the
project must obtain a City Planning Permit under the New York City Zoning
Resolution, Art. I, ch. 3; (3) the proposed project involves defendant NY IDA in
the construction or rehabilitation of residential housing, in violation of its

enabling legislation, N.Y.Gen.Mun.Law 917(c) (McKinney 1986 &

Supp.1992); and (4) the agreements ratifying the proposed project must be
annulled because of violations of state conflict of interest laws,
N.Y.Pub.Off.Law 73(7) (McKinney 1988).
3

We reverse the portion of the judgment granting summary judgment to

plaintiffs on their Clean Air Act claim, and grant summary judgment in favor of
the defendants on this issue. We affirm the portion of the judgment granting
summary judgment to the defendants on the pendent claims for the reasons set
forth in the District Court's opinion. 769 F.Supp. at 491-98.

Facts
4

A. Regulatory framework under the Clean Air Act. We have previously

canvassed the "complex interplay" between federal and state environmental
requirements, see Wilder v. Thomas, 854 F.2d 605, 608-10 (2d Cir.1988)
(Wilder II ), cert. denied, 489 U.S. 1053, 109 S.Ct. 1314, 103 L.Ed.2d 583
(1989), and therefore provide only the details necessary for an understanding of
the present dispute. The CAA entrusts the Environmental Protection Agency
("EPA") to promulgate national ambient air quality standards ("NAAQS") for
certain pollutants including carbon monoxide ("CO"). 42 U.S.C. 7409 (1988).
Each state must develop, subject to EPA approval, a State Implementation Plan
("SIP") to implement, maintain, and enforce the NAAQS for each regulated
pollutant. 42 U.S.C.A. 7410 (West Supp.1992).

In 1977 Congress amended the Act, Pub.L. No. 95-95, 101-406, 91 Stat. 685
(1977), to extend the deadline for attainment of carbon monoxide standards in
"nonattainment" areas, including New York. 42 U.S.C. 7502(a)(2). See
generally Council of Commuter Organizations v. Gorsuch, 683 F.2d 648, 65152 (2d Cir.1982) (describing 1977 amendments). These nonattainment areas
were required to submit revised SIP's to comply with the stringent so-called
"Part D" requirements, 42 U.S.C. 7501-7508, or face a moratorium on the
construction or modification of major stationary sources of pollution. Id.
7410(a)(2)(I). The Part D requirements were designed, in part, to allow the
states to attain the NAAQS for carbon monoxide and ozone "as expeditiously
as practicable" but no later than December 31, 1982. Id. 7502(a)(1). States
such as New York with especially severe pollution problems could receive an
additional extension to December 31, 1987, by complying with additional
requirements. Id. 7502(c). The New York revised carbon monoxide SIP at
issue here was submitted in January 1984.

The 1990 amendments to the Clean Air Act, Pub.L. No. 101-549, 101-1101,

104 Stat. 2399 (1990), provided varying dates for attainment of the NAAQS for
carbon monoxide depending on whether the EPA classified an area as one with
"Moderate" or "Serious" nonattainment. 42 U.S.C.A. 7512(a)(1) (West
Supp.1992). Because the EPA has classified New York City as a "moderate"
nonattainment area for CO, the City must attain the primary NAAQS for CO
"as expeditiously as practicable" but not later than December 31, 1995. Id.
7512(a)(1). Any moderate nonattainment area that fails to meet the 1995
deadline will be reclassified as "serious," id. 7512(b)(2), and receive five
more years to achieve compliance, id. 7512(a)(1). The amendments require
the states to submit a revised SIP to implement, maintain, and enforce the new
NAAQS deadlines. Id.
7

The current New York State SIP relies primarily on Environmental Impact
Statements ("EIS") to evaluate projects that may have a significant impact on
environmental quality. See New York State Air Quality Implementation Plan
for Control of Carbon Monoxide and Hydrocarbons in New York City
Metropolitan Area 3.6 (rev. Jan. 1984). As an indirect source of pollution, the
proposed project, with its likely effect on vehicle traffic, 1 was required to
submit an EIS by the State Environmental Quality Review Act ("SEQRA"), see
N.Y.Envtl.Conserv.Law 8-0109(2) (McKinney 1984 & Supp.1992). EIS's are
also mandated under similar circumstances by the National Environmental
Policy Act, 42 U.S.C. 4332 (1988) (EIS required for certain major federal
actions) and under the New York City Environmental Quality Review, N.Y.
City Charter 197c.

At issue on this appeal is section 3.6 of the New York State SIP, which
describes the carbon monoxide problem in the New York City metropolitan
area, describes the state statutory environmental review process for indirect
sources of pollution, and makes specific commitments for the use of the
environmental review process in New York City, Nassau County, and
Westchester County. Subsection 3.6(A) of the SIP provides specific
commitments for New York City to identify and mitigate violations of the
NAAQS for carbon monoxide and provides in pertinent part that:

9 further ensure that the carbon monoxide standard is attained in New York City,
To
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.
10

Section 3.6 of the New York SIP contains separate commitments for Nassau
and Westchester counties. See SIP 3.6(B), (C).

11

Plaintiffs here attempt to use the citizen suit provision of the Act to enforce the
City's commitment to mitigate CO emissions. That provision authorizes private
citizens to bring an action in a district court to enforce "any condition or
requirement under an applicable implementation plan relating to transportation
control measures...." 42 U.S.C.A. 7604(f)(3) (West Supp.1992).

12

B. The proposed development. The City acquired the project site in 1953 and
sold its use and occupancy rights to the TBTA. In 1956, the TBTA built and has
since operated on the site an office building and a convention center, the New
York Coliseum. In the early 1980's, after the construction of the Jacob Javits
Center rendered the Coliseum obsolete, the City sought proposals for the
private purchase and redevelopment of the site. The TBTA was designated as
the "lead agency" to carry out the required environmental studies under
SEQRA, including the draft and final EIS.

13

After receiving a number of proposals, TBTA accepted Boston Properties'

proposal. The agreement among the parties (the "New Purchase Agreement")
provides that the NY IDA will be the owner of the commercial portion of the
project and will issue non-tax exempt bonds to Coliseum Associates for
financing. The gross purchase price of approximately $338 million will be
applied toward capital and operating programs of the City's transit system.

14

Plaintiffs object to the project's failure to identify measures to mitigate a

violation of the ambient CO standard in midtown Manhattan identified in the
EIS for the proposed project. The relevant carbon monoxide standard provides
that the ambient carbon monoxide concentration shall not exceed, more than
once per year, a level of 9 parts per million ("ppm") over an 8-hour period. 40
C.F.R. 50.8(a)(1) (1991). The ten sites monitored by the project's Final EIS
are either adjacent to Columbus Circle, on major arteries serving Columbus
Circle, or have been designated a "hot spot" by the SIP--i.e., a location with a
potential to violate the carbon monoxide standard. Of these ten sites, the
maximum permissible level of 9 ppm is currently exceeded at only one site, the
East 59th Street "hot spot."2 The Final EIS estimated that the carbon monoxide
level at the East 59th Street "hot spot" between Madison and Fifth Avenues will
reach 12.9 ppm in 1993 without the project and 13.3 ppm with the project. At
eight of the other ten sampling sites, although the eight-hour CO concentrations
are projected to increase, they are expected to remain below 9 ppm. At the
remaining sampling site, the eight-hour CO concentration is projected to remain
unaffected.

15

C. District Court opinion. On cross-motions for summary judgment, the Court

granted relief to the plaintiffs on their Clean Air Act claim, but dismissed their

pendent claims. Coalition Against Columbus Center v. City of New York,

supra. The Court found a breach of the commitment in subsection 3.6(A) of the
SIP to implement mitigation measures for violations of the NAAQS for carbon
monoxide identified during a project's environmental review procedure. The
Final EIS predicted that the project would marginally exacerbate an already
existing violation of the NAAQS for carbon monoxide at the East 59th Street
"hot spot." The Court properly recognized that due to EPA's conventions for
rounding integers, 40 C.F.R. 50.8(d) (1991), and the de minimis rule
promulgated by the New York State Department of Environmental
Conservation, the increase at the 59th Street "hot spot" was a non-legally
cognizable increase, and that finding is not challenged on appeal. 769 F.Supp.
at 484-85.
16

Nevertheless, the Court ruled that "new projects must mitigate existing carbon
monoxide violations, even those carbon monoxide violations not of the project's
own making." Id. at 485. The City contended that mitigation would be
achieved by the City's area-wide air pollution control program entitled "Relief
of Traffic Congestion and Air Pollution" ("ROTCAP"), now known as "Traffic
Congestion and Pollution Relief Study" ("Traffic CPR"). Judge Kram criticized
the delay in completing the Traffic CPR study and found that "in light of
defendants' inability to supply the Court with any basis for a realistic timetable
for development, proposal, adoption and implementation of ameliorative
measures," the City had "failed to fulfill" subsection 3.6(A) of its SIP
commitment. Id. at 489.

17

Upon the finding of a violation, the Court invoked its equitable powers to craft
an appropriate remedy. Plaintiffs sought a declaration nullifying and voiding
the New Purchase Agreement, as well as five resolutions of the Board of
Estimate, two TBTA resolutions, and one NY IDA resolution approving,
enabling, or financing the sale. Specifically, on their claim to enforce
subsection 3.6(A), plaintiffs sought an injunction against the City from taking
any steps in furtherance of the project until a revised EIS is prepared showing
how carbon monoxide violations will be avoided.

18

The Court denied plaintiffs' request to enjoin the project until a revised Final
EIS shows that the NAAQS violations identified therein will be mitigated and
that compliance with the SIP will be achieved and maintained. Instead, after
weighing the competing public interests, the Court enjoined the City from
further violating its SIP commitment with respect to mitigation of the CO "hot
spot" at East 59th Street and established penalties for future deficiencies. Id. at
490. If the City fails to complete the Traffic CPR Study in time to incorporate
its recommendations into the revised SIP on November 15, 1992, it will be

subject to an order enjoining any further work on the project. In addition, if the
deadline for completion of traffic CPR is missed, the Court will impose a fine
upon the defendants, jointly and severally, in the initial amount of at least $15
million, to be supplemented by additional fines until the defendants fully
comply with their statutory obligations.
Discussion
I. Applicable Legal Standards
19

On appeal, the defendants raise the threshold issue whether a citizen suit may
be maintained to enforce subsection 3.6(A) of the SIP. The citizen suit
provision of the Clean Air Act creates a limited private right of action to enforce
the Act's provisions and provides in pertinent part:

20
[A]ny
person may commence a civil action on his own behalf--(1) against any
person ... who is alleged to be in violation of (A) an emission standard or limitation
under this chapter....
21

42 U.S.C. 7604(a)(1). The Act defines an "emission standard or limitation"

as:

22 ... any condition or requirement under an applicable implementation plan relating

(3)
to transportation control measures, air quality maintenance plans, vehicle inspection
and maintenance programs or vapor recovery requirements ... which is in effect
under this chapter.... or under an applicable implementation plan.
23

42 U.S.C.A. 7604(f)(3) (West Supp.1992). To state a claim under the citizen

suit provision a plaintiff must allege a violation of "a specific strategy or
commitment in the SIP and describe, with some particularity, the respects in
which compliance with the provision is deficient." Council of Commuter
Organizations, 683 F.2d at 670; see Wilder II, 854 F.2d at 610; Action for
Rational Transit v. West Side Highway Project, 699 F.2d 614, 616 (2d
Cir.1983).

24

A cornerstone of this Court's interpretation of the citizen suit provision is the

principle that an air quality standard established under the Clean Air Act is not
an "emission standard or limitation." Wilder II, 854 F.2d at 613-16; see also
League to Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1173 (9th Cir.),
cert. denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979). In Wilder II,
a tenant's association and various concerned citizens brought an action pursuant
to the citizen suit provision to enjoin a development project in Manhattan. We

found that plaintiffs's claim to enforce section 3.5.3 of the New York State SIP
was simply an effort to enforce the NAAQS for carbon monoxide and therefore
could not be maintained under section 7604 of the Act. Section 3.5.3 provides
in pertinent part that "all [carbon monoxide] hot spots will be eliminated by the
end of 1987." See Wilder II, 854 F.2d at 609. The plaintiffs argued that a
"condition or requirement" of section 3.5.3 of the SIP was that all hot spots
must be eliminated by December 31, 1987, and that construction of the project
would "assure the continued existence of hot spots." See id. at 612.
25

Distinguishing between an air quality standard and a specific strategy to attain

that standard, we rejected the argument that this claim alleged a violation of a
condition or requirement "relating to transportation control measures" within
the meaning of subsection 7604(f)(3). Id. at 614. The statement "that all hot
spots will be eliminated by the end of 1987," we reasoned, merely restated the
CAA's requirement that the NAAQS for carbon monoxide must be attained by
December 31, 1987. Id. at 615. The question presented in the pending appeal is
whether an action to enforce subsection 3.6(A) constitutes an effort to compel
general compliance with an air quality standard or whether it is an effort to
enforce a specific strategy to attain an air quality standard.

26

The two district courts that have considered the issue have held that subsection
3.6(A) of the SIP is sufficiently specific to be enforceable by a citizen suit. See
Atlantic Terminal Urban Renewal Area Coalition v. N.Y.C. Dep't of
Environmental Protection (ATURA I), 697 F.Supp. 157, 162-63
(S.D.N.Y.1988); Wilder v. Thomas (Wilder I), 659 F.Supp. 1500, 1506-07
(S.D.N.Y.1987), aff'd on other grounds, 854 F.2d 605 (2d Cir.1988), cert.
denied, 489 U.S. 1053, 109 S.Ct. 1314, 103 L.Ed.2d 583 (1989). Similar
provisions in the 1982 Bay Area Quality Plan have also been held to be
enforceable through citizen suits. Citizens for a Better Environment v.
Deukmejian, 731 F.Supp. 1448, 1456-57 (N.D.Cal.1990) ("CBE I ") (stationary
source and transportation contingency measures).

27

Wilder I ruled that subsection 3.6(A) was a "condition or requirement" of the

SIP and therefore enforceable through a citizen suit under section 7604 of the
Act. The District Court explained that to allege a legally sufficient claim to
enforce subsection 3.6(A),

28would be necessary to allege a repudiation by the City of its commitment or a

it
failure of the City to fulfill its commitment. Also, these allegations would need to be
related to the specific items which can be the subject of a citizen suit under the Clean
Air Act--i.e., transportation-control measures, air quality maintenance plans, vehicle
inspection and maintenance programs or vapor recovery requirements. The

allegations would need to be made with particularity.

29

659 F.Supp. at 1507 (citations omitted). Although finding that subsection

3.6(A) could be enforced by a citizen suit, the District Court in Wilder I
nevertheless dismissed the claim because the plaintiffs had not supported their
allegation that the City had violated subsection 3.6(A) by repudiating or failing
to fulfill its commitment. On appeal in Wilder II, we did not pass on the merits
of the District Court's standard but affirmed on the ground of collateral
estoppel. 854 F.2d at 621.

30

The issue was again raised before the District Court in ATURA I, which also
upheld the use of a proper citizen suit to enforce subsection 3.6(A) of the SIP.
The Court explained that subsection 3.6(A) "contains a commitment on the part
of the City to act, and thereby does more than restate a goal." 697 F.Supp. at
162; see also CBE I, 731 F.Supp. at 1457 ("We discern no principled basis,
consistent with the Clean Air Act, for disregarding this unequivocal
commitment simply because the particulars of the contingency measures are
not provided."). ATURA I also relied on the possibility that a contrary holding
would allow states to "construct SIPs specific enough to satisfy the CAA
requirements, with commitments to comply, but sufficiently general to thwart
citizen suits." 697 F.Supp. at 162.

II. Enforcement of Subsection 3.6(A) in a Citizen Suit

31
32

We must decide whether subsection 3.6(A) of the SIP contains a "condition or

requirement under an applicable implementation plan relating to transportation
control measures," within the meaning of subsection 7604(f)(3). The initial
question is whether subsection 3.6(A) contains a "condition or requirement
under an applicable implementation plan." Wilder II held that the commitment
in section 3.5.3 of the SIP to eliminate all hot spots by the then-statutory
deadline of December 31, 1987, was not a "condition or requirement" of the
SIP. Although subsection 3.6(A) commits the City to implement "mitigating
measures," the SIP does not further specify the required types of mitigating
measures. Thus, the commitment in subsection 3.6(A) is less specific than the
transportation control measure identified in Wilder II (changing traffic flow
patterns) and much less specific than a condition or requirement "relating to"
that measure, such as the installation of a new traffic signal system. See Wilder
II, 854 F.2d at 615-16.

33

Nevertheless, the commitment in subsection 3.6(A) is sufficiently specific to

constitute a "condition or requirement under an applicable implementation
plan," within the meaning of subsection 7604(f)(3). As ATURA I recognized,

subsection 3.6(A) does not merely restate the NAAQS, it further "commits the
City to take affirmative, although unspecified, steps to achieve the [national
ambient air quality] standard." 697 F.Supp. at 161. Interpreting a similar
provision in a California SIP, the Court in CBE I explained, "[T]he basic
commitment to adopt and implement additional measures, should the identified
conditions occur, constitutes a specific strategy, fully enforceable in a citizens
action, although the exact contours of those measures are not spelled out." 731
F.Supp. at 1457. Moreover, "there is no reason why a process, plainly spelled
out, can not constitute a valid, identifiable strategy for achieving Plan
objectives." Id. Thus, subsection 3.6(A) sets forth a "condition or requirement"
of the New York State SIP, though the lack of detail in the subsection makes it
relatively easy to defeat a citizen suit alleging noncompliance.
34

The next question is whether the "condition or requirement" contained in

subsection 3.6(A) relates to a transportation control measure within the
meaning of subsection 7604(f)(3). The EPA has defined a transportation control
measure as "any measure that is directed toward reducing emissions of air
pollutants from transportation sources." Wilder II, 854 F.2d at 614 (quoting 40
C.F.R. 51.100(r) (1987)). We have provided a similar definition. See Council
of Commuter Organizations v. Metropolitan Transportation Authority, 683 F.2d
663, 666 n. 2 (2d Cir.1982) (" 'Transportation control measures' are strategies
designed to reduce pollution by limiting or controlling motor vehicle use.") The
defendants cite the City's Traffic CPR program as the mitigation strategy
required by subsection 3.6(A). The program is an effort to identify and
implement measures to reduce tail pipe emissions and relieve traffic congestion
in the New York metropolitan area. Because CO emissions result primarily
from gasoline powered motor vehicles, not surprisingly, Traffic CPR fits easily
within the meaning of "transportation control measures."

35

In sum, the commitment in subsection 3.6(A) provides "an emission standard or

limitation" within the meaning of the citizen suit provision because it states a
"condition or requirement under an applicable implementation plan relating to
transportation control measures." Since the citizen suit provision supports an
action to enforce subsection 3.6(A) of the SIP, we must next consider whether
the City has "repudiated" or "failed to fulfill" its commitment under the SIP,
Wilder I, 659 F.Supp. at 1507, bearing in mind the fairly generalized nature of
the commitment.

III. SIP Compliance

36

As the District Court found, the proposed project's Final EIS relies on the
Traffic CPR program to mitigate CO emissions. 769 F.Supp. at 485.

Subsequent to the 1990 amendments to the CAA, the EPA required New York
State to submit a revised SIP by November 15, 1992. Even with this apparent
de facto extension, the District Court ruled that the existing commitment to
meet the NAAQS for carbon monoxide by December 31, 1987, remained in
effect until the EPA approves New York State's revised SIP. Id. at 486-87. In so
holding, the Court relied on the so-called savings clause of the 1990
amendments, which preserved "[a]ny provision of any applicable
implementation plan" until revision of the provision is approved or
promulgated by the EPA, 42 U.S.C.A. 7410(n)(1) (West Supp.1992), and on
the fact that New York State has missed each of its previous deadlines for
submitting revised SIP's. Id. at 487.
37

In determining the reasonableness of the City's efforts to meet its commitment

under subsection 3.6(A), the District Court assessed the City's progress in
meeting the December 31, 1987, deadline rather than according the City the
benefit of the extension afforded by the 1990 amendments. The Court found
that non-complying regions are not excused from complying with their
obligations under the Act while they submit and await approval of their revised
SIP's. Id. The Court found that the City was not entitled to the presumption that
it would meet the revised deadlines in light of its history of missed deadlines.
Id. Since the City had missed the December 1987 deadline contained in
subsection 3.6(A), the Court assessed the City's progress according to the more
stringent requirement applicable to areas that have failed to meet their SIP
deadlines. Id. Because the City missed the then-applicable deadline, it must
take steps that are reasonably calculated to reach the NAAQS "as soon as
possible" rather than "as expeditiously as practicable." See Delaney v. EPA,
898 F.2d 687, 691 (9th Cir.) ("We believe that the only reasonable
interpretation of the 1977 amendments is that if the 1982 deadline that congress
specified is not met, the national ambient air quality standards must be attained
as soon as possible with every available control measure, including those that
the EPA identified in its criteria for approving 1982 plans"), cert. denied, --U.S. ----, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990).

38

After assessing the City's efforts under the Traffic CPR study, the Court
concluded that the City "failed to fulfill" subsection 3.6(A) of its SIP
commitment because its reliance on the Traffic CPR program "does not
represent a reasonable attempt to attain air quality standards at any time in the
near future." 769 F.Supp. at 489. In reviewing this key conclusion, we consider
first the applicable CO deadline and then the claim of noncompliance.

39

A. Applicable CO deadline. The initial inquiry is whether the 1990

amendments to the CAA extended the deadline for attainment found in

subsection 3.6(A) of the current SIP. The 1990 amendments extended the City's
deadline for attainment of the carbon monoxide NAAQS under a revised SIP
from December 31, 1987, to December 31, 1995, and possibly to December 31,
2000. Meanwhile, New York operates under the current SIP until the EPA
approves a revised SIP, due in November 1992. The current SIP commits the
City to take mitigating measures under certain circumstances "so as to provide
for attainment of the [national ambient air quality] standard by December 31,
1987 and maintenance of it thereafter." SIP 3.6(A) (emphasis added).
40

The State and the City clearly have a continuing obligation to meet the specific
requirements of the current SIP until the EPA approves a revised version
pursuant to the 1990 amendments. In passing the 1990 amendments, Congress
preserved "[a]ny provision of any applicable implementation plan" that was
approved or promulgated by the Administrator prior to the passage of the
amendments, 42 U.S.C.A. 7410(n)(1) (West Supp.1992). Although
subsection 3.6(A) is clearly a "provision" in an applicable SIP and therefore
arguably preserved in its entirety, we must endeavor to give statutes "a
harmonious, comprehensive meaning." United States v. Stauffer Chemical Co.,
684 F.2d 1174, 1184 (6th Cir.1982), aff'd, 464 U.S. 165, 104 S.Ct. 575, 78
L.Ed.2d 388 (1984). Congress clearly intended to extend the deadline for
compliance with the NAAQS. We cannot subscribe to the theory that Congress
extended the deadline for compliance with the NAAQS, but obliged the states
to remain liable for failure to meet the prior deadlines. The extension did not
automatically effect a postponement of the deadlines for accomplishing all the
specific tasks that a state obligated itself to perform in a SIP. A SIP
commitment to shut down a particular source of pollution or to install a
particular pollution control device by a specified date would not be extended by
force of the 1990 amendments alone. But the subsection 3.6(A) commitment to
take mitigating steps to eliminate hot spots is of a higher level of generality.
Indeed, its very generality is what underlies the defendants' argument that the
subsection is so similar to the obligation to meet the NAAQS as to render it
unenforceable by a citizen suit.

41

We acknowledge the tension between interpreting the 1990 amendments to

extend the subsection 3.6(A) deadline and at the same time interpreting the
citizen suit provision to be applicable to the subsection 3.6(A) obligation. But
we think that both interpretations carry out evident congressional objectives.
Congress wanted to accord the states more time to meet the general obligations
of SIPs. Yet Congress wanted citizens to be able to sue to enforce all SIP
obligations relating to an emission standard or limitation, save only those that
are, as we ruled in Wilder II, in effect an obligation to enforce the NAAQS. We
believe that we faithfully effectuate congressional intent by recognizing that the

deadline for attainment, set forth in subsection 3.6(A), has been extended and
that the citizen suit provision remains available to enforce that subsection's
somewhat general obligation "to assure that mitigating measures will be
implemented ... so as to provide for attainment" by the extended date. The SIP
commitment concerns attainment, but, unlike the commitment in Wilder II,
which was the equivalent of a commitment to achieve attainment, the
commitment here is a step toward attainment, and it is important that the taking
of that step--the implementation of mitigating measures--be enforceable by a
citizen suit.
42

Nonattainment areas such as New York face the additional proscription against
the modification of any "control requirement in effect, or required to be
adopted" by a prior order, settlement agreement, or plan "unless the
modification insures equivalent or greater emission reductions of such air
pollutant." 42 U.S.C.A. 7515 (West Supp.1992).3 While not defined in the
1990 amendments, the phrase "control requirement" bears a close resemblance
to the phrase "emission standard or limitation" contained in the citizen suit
provision, 42 U.S.C. 7604(a)(1).4 The resemblance is even more striking
because an "emission standard or limitation" includes "any condition or
requirement under an applicable implementation plan relating to transportation
control measures," 42 U.S.C.A. 7604(f)(3) (emphasis added). We would be
making an untenable distinction if we were to hold that subsection 3.6(A) is an
"emission standard or limitation" for purposes of the citizen suit provision, but
not a "control requirement" within the meaning of the general savings clause.
We decline to do so. Without defining the outer limits of "control requirement"
in section 7515, we hold that the commitment to implement mitigating
measures, but not the attainment date, constitutes a "control requirement" and
therefore remains a continuing obligation of New York State.

43

While Congress intended the new deadlines to apply to commitments such as

that found in subsection 3.6(A), New York might have intended to impose upon
itself a stricter compliance deadline. The December 31, 1987, deadline in
subsection 3.6(A) may have been a state law obligation that simply coincides
with the federally mandated deadline. While states retain the authority to
implement a deadline for attainment more stringent than the federally required
standard, see 42 U.S.C.A. 7502(a)(2)(A), (B) (requiring nonattainment areas
to achieve NAAQS "as expeditiously as practicable" or by certain date); 42
U.S.C. 7416 (with exceptions not relevant here, states may adopt measures so
long as they are not "less stringent than the standard or limitation under such
plan or section"), they must clearly state their intention to impose a stricter
deadline for attainment of the NAAQS. Unless otherwise clearly provided in
the SIP, we presume that a state relying on an attainment deadline that

coincides with the federally mandated deadline does not intend to impose a
more stringent deadline based independently on state law.
44

Because the CAA amendments of 1990 extended the deadline found in

subsection 3.6(A) of the SIP, the City has not missed the deadline for assuring
that mitigating measures will be implemented. As a result, the District Court
erred in determining whether the City's efforts were "reasonably calculated to
lead to NAAQS compliance 'as soon as possible.' " 769 F.Supp. at 487. The
relevant inquiry is whether the efforts would lead to compliance "as
expeditiously as practicable" or by the statutory deadline. When measured
against the more flexible standard, the City's efforts do not constitute a "failure
... to fulfill" or a "repudiation" of its commitment. Wilder I, 659 F.Supp. at
1507.

45

B. SIP compliance with CO deadline. As the defendants concede, the City must
assure that either the project sponsor or the City will implement mitigating
measures for any violation or exacerbation identified by a project's EIS, even if
not caused by the project.5 While non-project caused violations or
exacerbations must be mitigated, subsection 3.6(A) does not specify whether
the City or the project sponsor must implement these measures. The City
simply must assure that either the City or the project sponsor must so mitigate.6
The City could require the project sponsor to mitigate any project-caused
violations or exacerbations, while implementing measures to deal with nonproject caused violations or exacerbations. Because the proposed project did not
cause the violation or exacerbation identified in the Final EIS, the City has the
obligation to mitigate the East 59th Street "hot spot."

46

The centerpiece of the City's effort to implement an area-wide strategy to attain

and maintain the federally mandated air quality standards is the Traffic CPR
study. The study is under development by a private consulting firm working
under the jurisdiction of the New York City Department of Transportation. The
study will suggest strategies to be incorporated into the revised SIP due
November 1992 by the 1990 amendments to the Clean Air Act. As of
December 1990, the City had budgeted more than $2,756,000 for the
consultant. Part A of the study will consist of data collection and computer
modelling of traffic patterns and emissions scenarios. Field data will be used to
create and then calibrate a computer traffic modelling program. Part B will
consist of the presentation of specific pollution control and traffic congestion
measures based on the program's estimation of the effectiveness of various
combinations of such measures.

47

While the data collection has been completed, the Court noted that

implementation of Traffic CPR lags behind schedule. See 769 F.Supp. at 48889. Traffic CPR is currently scheduled for completion in late 1992, in order to
recommend strategies for the November 1992 SIP. However, because the
computer program to analyze and interpret the data had not yet been completed
as of June 28, 1991, the City's Department of Transportation was unable to
provide the District Court with a summary of the data "because it exists as
thousands of pages and computer disks of raw statistics."
48

Though the City's progress has not been as rapid as possible, the plaintiffs have
not presented a triable issue of fact as to SIP compliance. The City certainly has
not repudiated or failed to fulfill its commitment to mitigate nonproject-caused
violations or exacerbations. See Wilder I, 659 F.Supp. at 1507. No evidence
suggests that the City's efforts are not made in good faith. The City has not
made any statements or taken any acts to suggest that it does not intend to
comply with its commitment.

49

The Traffic CPR study is scheduled to be completed some three years before
the new attainment deadline of 1995. In Atlantic Terminal Urban Renewal Area
Coalition v. N.Y.C. Dep't of Environmental Protection, 740 F.Supp. 989, 998
(S.D.N.Y.1990) ("ATURA II "), the Court held that defendants had not failed to
fulfill their commitment under 3.6(A). Although the ATURA II defendants
were required to take steps to achieve the NAAQS "as soon as possible," the
Court found the area-wide plan a reasonable attempt although not completed
until one year prior to the deadline, id. at 997. By contrast, the Traffic CPR
study is scheduled to be completed some three years before the new attainment
deadline of 1995. While the City has not implemented any area-wide mitigating
measures, it would be premature to implement a strategy without an
understanding of its system-wide effect. The steps that the City has taken to
plan and prepare for the implementation of mitigating measures are
indisputably sufficient to defeat a claim of current noncompliance with
subsection 3.6(A). Whether in the future the City will become liable to a citizen
suit for noncompliance for failure to implement steps reasonably calculated to
achieve the extended attainment deadlines will depend on the subsequent
actions or inaction of the City.

Conclusion
50

The City has not now repudiated or failed to fulfill its commitment to assure
that mitigating measures are implemented to reach compliance by the new
statutory deadline. Therefore, we reverse the portion of the judgment granting
summary judgment for the plaintiffs on their citizen suit action to enforce
subsection 3.6(A), and direct the entry of summary judgment on the claim for

the defendants. As to the pendent claims raised on the cross-appeal, we affirm

for the reasons set forth in the District Court's opinion. 769 F.Supp. at 491-98.
Accordingly, the judgment is reversed in part and affirmed in part, and
remanded for entry of a judgment consistent with this opinion.

The Final EIS predicts that 4,790 new auto, taxi, and truck trips will be
generated each day; eighty-five percent of the auto trips will park in the project
garage, resulting in "increased carbon monoxide concentrations."

To understand the relationship between the "hot spot" and the proposed project,
some awareness of Manhattan geography is helpful. The currently high CO
concentrations at the 59th Street "hot spot" result primarily from the traffic
congestion around the Manhattan side of the 59th Street Bridge spanning the
East River. East 59th Street becomes Central Park South west of 5th Avenue
and eventually enters Columbus Circle as West 59th Street

The relationship between the savings clauses in subsection 7410(n)(1) and

section 7515 is not entirely clear. While section 7515 is entitled "General
savings clause," it is located within Part D. The portion of section 7515 that
preserves EPA regulations issued or promulgated "under this chapter" prior to
the 1990 amendments clearly applies outside the confines of Part D. By
contrast, the portion of section 7515 preserving any "control requirement" does
not state whether it applies only to Part D or to the Clean Air Act in its entirety
Subsection 7410(n)(1) preserves "[a]ny provision of any applicable
implementation plan" approved or promulgated prior to the 1990 amendments.
For nonattainment areas, section 7515 also preserves any "control
requirements" required by order or settlement agreements as well as those
required by SIP's. However, with respect to "control requirements" in SIP's, it is
unclear whether section 7515 preserves anything in addition to that already
preserved by the savings clause in subsection 7410(n)(1).
In any event, under both savings clauses, the statutory extension does not
relieve the states of meeting all deadlines in current SIP's. Thus, for example,
the statutory extension would not relieve the City of its commitment to close a
particular smokestack by December 31, 1987. Thus, both savings provisions
would require the City to close the smokestack "as soon as possible."

By focusing on the specificity of the requirement, preliminary efforts to define

the phrase "control requirement" have been similar to the current definition of
"emission standard or limitation." For example, in a proposed rule, the EPA
interpreted the phrase "control requirement" to mean "a discrete regulation

directed at a source of pollution." 56 Fed.Reg. 826 (1991) (proposed Jan. 9,

1991)
Similarly, the savings clause has been held not to preserve the requirement that
EPA prepare a Federal Implementation Plan in lieu of a rejected SIP because
"there is no present specification of the details of control of various sources of
emission control." Coalition for Clean Air v. EPA, 762 F.Supp. 1399, 1402
(C.D.Cal.1991); accord 56 Fed.Reg. 826 (1991) (proposed Jan. 9, 1991) (42
U.S.C.A. 7515 does not preserve obligation to promulgate Federal
Implementation Plan).
5

If a project EIS "identifies a violation or exacerbation of the carbon monoxide

standard," then the City commits to assure that the "project sponsor or City"
implement mitigating measures. SIP 3.6(A) (emphasis added). By contrast,
Nassau and Westchester Counties commit to mitigate only project-caused
violations. Id. 3.6(B), (C)

The EPA notice relied upon by the District Court and the plaintiffs, 53
Fed.Reg. 35,207 (1988) (proposed Sept. 12, 1988), is not to the contrary. See
769 F.Supp. at 485. In its notice, the EPA stated, "The SIP commitment does
not make this distinction between project-caused and nonproject-caused CO
violations." Therefore, the EPA explained, RFP reports must identify all CO
violations, whether project caused or not
The EPA took no position, however, as to whether the City or the project
sponsor must implement the mitigating measures.