of the Maloney and Inland projects. See Part III of this Memorandum Opinion.
The Court has determined that jurisdiction does not lie under 42 U.S.C. § 1857h-2(a), as that section is limited to an action brought ". . . to enforce . . . an emission standard or limitation . . .", and to an action in the nature of mandamus against the Administrator of the Environmental Protection Agency. Since there is no final standard in effect in Washington, D.C. at present, none can be enforced against the Maloney and Inland projects. In addition, the Administrator has not been named as a party-defendant in the present action.
However, the Court is of the opinion that this Court can exercise jurisdiction under 28 U.S.C. § 1331, which gives the district courts jurisdiction over a federal question in which the amount in controversy exceeds $10,000. The Court has determined that a substantial federal question exists as to whether the Clean Air Act of 1970 requires that the Maloney and Inland developments be reviewed during their construction to determine their potentiality for interfering with attainment and maintenance of the national standards in Washington, D.C. The Court also has concluded that injury to Plaintiffs' health from the violation of national ambient air standards represents an amount in controversy that exceeds $10,000, exclusive of interest, costs, and attorneys' fees.
The Court Will Deny Plaintiffs' Motion for Preliminary Relief Due to the Absence of a Threat of Immediate Injury, the Unlikelihood That Defendants' Developments Will Violate the National Standards, and the Intervening Determination by EPA That Pre-Construction Review Procedures Relevant to the Facilities in Issue Will Not Be Applied Retroactively to the July, 1973 and August, 1973 Dates When Maloney and Inland, Respectively, Commenced Construction.
This case is presently before the Court on Plaintiffs' Motion for a Preliminary Injunction to enjoin construction of the Maloney and Inland projects on the grounds that there has been no administration of an air quality impact analysis to insure that the air pollution associated with the new source will not interfere with the attainment or maintenance of air quality standards in the District of Columbia. Defendants' failure to review the air quality of the projects before proceeding with construction allegedly interferes with the statutory objective of the Clean Air Act of 1970 to attain and maintain the national standards and, therefore, violates the Clean Air Act, 18 U.S.C. § 1857c-5, the D.C. Air Quality Control Act, 6 D.C. Code 811-813, the D.C. Air Quality Control Regulations, Title 8, Section 2:701, et seq., and the D.C. Air Quality Implementation Plan. Because of the unfamiliar and technical questions concerning the probability of future violations of the national ambient air standards, the Court has approached this litigation with great "diffidence" and judicial restraint. See International Harvester Co. v. Ruckelshaus, 155 U.S. App. D.C. 411, 478 F.2d 615 (1973). Consequently, the Court has concluded that Plaintiffs' Motion for a Preliminary Injunction must be denied in light of Plaintiffs' failure to demonstrate to the Court's satisfaction that there is a likelihood they will prevail on the merits, Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (1958), or that they will sustain irreversible harm from the denial of the injunction, see Businessmen Affected by the Second Year Plan v. District of Columbia Land Agency, 143 U.S. App. D.C. 161, 442 F.2d 883 (1971).
A. Plaintiffs Have Failed to Demonstrate the Likelihood of Their Success on the Merits.
Plaintiffs' assertions on the merits of this case are that the Maloney and Inland projects will violate the national and District of Columbia ambient air quality standards on the date Congress provided, that the projects presently violate the Clean Air Act's new source review requirement to prevent new construction that will prevent attainment of the standards, that the projects also violate the District of Columbia stationary source construction permit requirement and that construction of the projects is contrary to the specific policy of the District of Columbia Implementation Plan to limit further growth in the central business district which is consistent with environmental needs. Plaintiffs' allegations are without firm basis in any of the statutes or regulations relied on, and, in the last analysis, require the Court to enter into considerations that are essentially an administrative rather than a judicial function.
While Plaintiffs several times in their papers suggest that Defendants Maloney and Inland are in violation of the national and District of Columbia primary ambient air quality standards, it is clear the Plaintiffs contend that the projects will violate such standards. The primary ambient air standards in question have been promulgated by the Administrator of EPA, 40 CFR § 50, and, subsequently, adopted without change by the District of Columbia and approved by EPA (37 Fed. Reg. 19857) pursuant to the Clean Air Act. 42 U.S.C. § 1857d-1. The pertinent standards to the instant action are those issued for the three pollutants whose primary source is the automobile: carbon monoxide, photo-chemical oxidants, and hydrocarbons. The date on which the levels of these pollutants in the ambient air of the District of Columbia must meet the published standards is established under the requirements of Section 110 of the Clean Air Act of 1970 subject only to several well-defined statutory extensions. As mentioned earlier, the District of Columbia's compliance with the primary air quality standards will probably be required by May 30, 1977. Quite clearly, then, Defendants' developments cannot be held to those primary ambient air standards today ! See Citizens for Clean Air v. Corps of Engineers, 356 F. Supp. 14 (S.D.N.Y. 1973).
The question then arises as to whether the projects, if they are likely to prevent attainment of the standards in 1977, are presently in violation of the Clean Air Act's requirement that the District of Columbia have in effect by a date certain a plan to achieve the national standards "as expeditiously as practicable." 42 U.S.C. § 1857c-5(a) (2) (A) (i). This question requires a determination by this Court as to whether the D.C. implementation plan will be successful. The Court must decline such review of the plan. Where, as here, the applicable portions of the implementation plan are completed after the Congressionally prescribed effective date of the plan, and after construction of new and unreviewed sources of air pollution has begun, the Court believes it appropriate to defer to administrative judgment regarding the necessity for retroactive application of the completed implementation plan to insure that the primary ambient air standards will be attained "as expeditiously as practicable." Recently, the Administrator of EPA in promulgating a parking facility review regulation for the District of Columbia determined that it was unnecessary and inequitable to apply the regulation to projects such as those challenged in the case at bar. This decision is entitled to a presumption of regularity which the Court finds controlling with respect to Plaintiffs' argument that the instant projects are likely to prevent an expeditious and timely attainment of the air quality standards in the District of Columbia. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971).
The Court lacks the evidentiary record and scientific expertise necessary to embark on a determination of whether the Maloney and Inland projects portend a pattern of air pollution of a magnitude that will prevent the District from attaining the standards by 1977. See Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S. App. D.C. 74, 439 F.2d 584 (1971). In such circumstances, the Court deems it appropriate to defer to the judgment of the Administrator of EPA who has the authority, in light of the District's failure to promulgate the necessary regulations, to formulate such regulations, articulate the criteria which support their promulgation, 42 U.S.C. § 1857c-5(c), and where necessary, to enforce their provisions. 42 U.S.C. §§ 1857c-8 and 1857c-9(b) (2). Since Congress assigned to the Administrator of EPA the primary responsibility to enforce applicable provisions of an implementation plan where necessary to the Act's objectives, the Administrator's decision not to enforce the plan against the projects at issue here is significant.
See Connecticut Action Now, Inc. v. Roberts Plating Company, Inc., 457 F.2d 81 (2nd Cir. 1962). Indeed, where Congress has provided a detailed administrative process for the formulation and promulgation of new source review regulations, "great respect must be paid to the presumptive exclusivity of that process." Citizens for Clean Air v. Corps of Engineers, supra, 356 F. Supp. at 18. Therefore, in the absence of a nuisance which poses immediate and irreparable harm to Plaintiffs, and where the ambient air quality standards as yet have no relevance to the alleged statutory violations of the buildings in question, the Court will defer to the judgment of the Administrator of EPA in his rulemaking authority and reject Plaintiffs' contention that the developments will result in concentrations of harmful pollutants in excess of the primary standards of the Clean Air Act. Plaintiffs will have the opportunity at trial on the merits to present evidence proving that the standards will indeed be exceeded in 1977. See Movement Against Destruction v. Volpe, 361 F. Supp. 1360 (D.C. Md. 1973). However, the Court notes in passing that estimating the increased air pollution generated from defendants' projects is a highly speculative undertaking, Wuillamey v. Werblin, 364 F. Supp. 237 (D.C.N.J. 1973), and may very well present judicially unmanageable standards.
The Court has also concluded that Maloney and Inland were not required to obtain stationary source construction permits prior to construction pursuant to the District of Columbia Air Quality Control Regulations, Title 8, Section 2:701, et seq. Since Defendants' parking garages are alleged to contain mobile sources of emissions, the present stationary source regulations concerning direct emissions from the building itself are inapplicable. See this Court's Opinion in Metropolitan Washington Coalition for Clean Air v. Department of Economic Development, 373 F. Supp. 1096 (D.D.C. 1973). The Clean Air Act's provision for regulating emissions from stationary sources, 42 U.S.C. §§ 1857c-6 to 1857c-7, was not originally interpreted by EPA to include buildings with garages in its publication of lists of categories of stationary sources and performance standards relating thereto pursuant to 42 U.S.C. § 1857c-6. See 40 CFR § 50.1 et seq. Recently the EPA Administrator has entertained thoughts of enlarging the scope of new stationary source review, but the Administrator's reflection on removing certain exemptions from the review regulations is inapposite to the matter at bar. See 38 Fed. Reg. 9599 (April 18, 1973).
The new indirect source review procedures
recently proposed and promulgated by the Administrator of EPA pursuant to an order of the Court of Appeals for the District of Columbia, NRDC v. EPA, supra, were not effective in the District of Columbia at the time Maloney and Inland received building permits, 38 Fed. Reg. 29893 (October 30, 1973), and, at present, do not appear to be retroactively applicable to those projects. Compare order of the Court of Appeals for the District of Columbia entered October 23, 1973, NRDC v. EPA, supra, with comments of Administrator of EPA, 38 Fed. Reg. 31536 (November 15, 1973).
B. Plaintiffs Will Not Sustain Irreversible Harm From the Denial of the Injunction.
Plaintiffs concede that the construction in itself is not harmful to the ambient air quality in Georgetown, but argue that they will be irreparably injured by construction of the developments because it is extremely unlikely that the operation of the buildings will be enjoined once they have been built. See Maryland, etc., Planning Commission v. Postal Service, 159 U.S. App. D.C. 158, 487 F.2d 1029 (D.C. Cir. 1973). The Court recognizes Plaintiffs' dissatisfaction over the failure of the District of Columbia to adopt and apply to Defendants' projects a new source review procedure that will evaluate the increased air pollution from the developments. However, that dereliction on the part of the D.C. government leaves Plaintiffs and others similarly situated in a regulatory vacuum or void. The Administrator of EPA in his tardy efforts to complete the District of Columbia implementation plan has decided not to make the amended new source review procedures applicable to the instant projects. Implicit in that determination is the judgment that said projects will not bring about the violation of the standards as Plaintiffs suggest, and ultimately, will not threaten harm to Plaintiffs' health.
For the foregoing reasons, the Court is entering an order of even date herewith denying Plaintiffs' Motion for a Preliminary Injunction.