The opinion of the court was delivered by: RICHEY
Plaintiffs seek a Declaratory Judgment, Mandatory and Injunctive Relief in order to prevent an alleged increase in air pollution that may be caused by the completion of construction of two buildings in the Georgetown waterfront area by the Maloney Concrete Corporation's Dodge Center Development and the Waterfront Development of Georgetown-Inland Corporation. The matter before the Court now is Plaintiffs' application for a Preliminary Injunction.
It is alleged that jurisdiction of this Court is vested under the provisions of Section 1857h-2(a), the Clean Air Act of 1970, and Section 1331(a) of Title 28, which gives the District Court jurisdiction over cases involving federal questions in which the amount in controversy exceeds $10,000.00, exclusive of interest and costs. The Defendants, Washington, Dugas, McKinney, and the two corporations deny that the Clean Air Act gives the Court jurisdiction upon the theory that the statute only authorizes suits against governmental instrumentalities or agencies presently in violation of emission standards, and, in addition, they allege there is no present violation of any law or regulation by any of the Defendants. Further, the Defendants deny that the amount in controversy exceeds $10,000.00 except that the two building or construction companies will suffer more than such damage should an injunction issue out of this Court prohibiting the further construction of their projects.
I. INTRODUCTION AND BACKGROUND
The Plaintiff, Committee of 100 on the Federal City, is a non-profit group, founded in 1923, whose purposes include the promotion of sound land-use planning techniques and generally to make the nation's capitol a better place in which to live. It sues on behalf of its members and itself. It alleges that several of its members own property in the Georgetown area and claims the members of the Committee will be seriously injured by the alleged increase in air pollution that will possibly be produced in the Washington area by the developments here on challenge at 1010-1014 Wisconsin Ave., N.W. by the Defendant, Maloney Concrete Corporation, and the complex at 1055 Thomas Jefferson St., N.W. by Defendants, Georgetown-Inland Corporation.
The local governmental defendants are the Commissioner of the District of Columbia, Walter E. Washington, the Director of the D.C. Department of Economic Development, Julian R. Dugas, and the Acting Director of the D.C. Department of Environmental Services, William C. McKinney. These defendants have the authority and responsibility under the federal and District of Columbia air pollution control statutes, the Clean Air Act of 1970 (42 U.S.C. § 1857 et seq.) and the District of Columbia Air Pollution Control Act (6 D.C. Code 811 et seq.), to prepare a comprehensive program to control and prevent air pollution in the District of Columbia. Commissioner Washington has the responsibility under the Clean Air Act to adopt an air quality plan that will implement, maintain and enforce the national air quality standards within the District of Columbia, 42 U.S.C. §§ 1857c-5(a) (1) and 1857c-5(a) (2). Defendant Dugas has the authority and responsibility to direct and supervise the issuance, suspension, revocation or modification of permits for the construction and operation of stationary sources of air pollution in the District. District of Columbia Air Quality Control Regulations, Title 8, Section 2:720(a), (c) and (1), (July 7, 1972); Commissioner's Order 73-166 (July 6, 1973). Defendant McKinney has the duty to supervise the execution of programs and functions involving the prevention and minimization of air pollution in the District and in particular to approve any permits for construction or modification and operation of any stationary source of air pollution. In addition, Defendant McKinney has the responsibility to direct the submission, revision, implementation and enforcement of the District of Columbia's Air Quality Implementation Plan, as required by the Clean Air Act, 42 U.S.C. § 1857c-5, 6 D.C. Code 813.
Private Defendant Georgetown-Inland Corporation (Inland) consists of five affiliates of Inland Steel Corporation which are corporations qualified to do business in the District of Columbia. Inland has plans over the next five years to construct in three phases an $80 million complex of shops, restaurants, offices, a hotel and a conference center on a seven-acre site in the Georgetown waterfront area. Among the five Inland affiliates, only Defendant Georgetown-Inland North Corporation has a building permit and is in the process of constructing a building which will contain space for offices, shops and a parking garage, and which will be powered by electricity.
B. The Legislative Background Entrusting Certain Aspects of Air Pollution Control in the District of Columbia to Defendants Washington, Dugas and McKinney Under the Supervision and Final Authority of the Environmental Protection Agency.
This case is before the Court on Plaintiffs' Motion for a Preliminary Injunction wherein Plaintiffs contend that the Maloney and Inland projects will cause violation of the national and District of Columbia primary ambient air standards by virtue of the large volume of air pollutants that will be emitted from automobiles carrying employees, visitors and customers to and from the new developments. Plaintiffs argue that the District of Columbia violated statutory and regulatory duties in granting each developer a building permit without first determining whether each new project will interfere with air quality levels for the District mandated by Congress in the Clean Air Act of 1970, 42 U.S.C. § 1857c-5. Plaintiffs call upon the Court to revoke the building permits and order that formal administrative procedures to determine the air quality impact of the developments are required before the construction may continue.
Resolution of the Motion presently before the Court requires that we address briefly the difficult procedural problems resulting from recently enacted programs for enhancing the quality of the air in the District of Columbia. In part, these programs, as will be demonstrated below, were based on incorrect interpretations of the Clean Air Act that resulted in the implementation of applicable air quality review procedures in the District after Defendants Maloney and Inland had obtained their building permits and commenced construction.
Washington, D.C., like all the states, was required to submit to the Environmental Protection Agency (EPA) an air quality implementation plan which would meet a variety of federal standards regarding the regulation of air pollution. 42 U.S.C. § 1857c-5(a) (1) et seq. The Clean Air Act requires that the implementation plan by implementing a variety of controls attain the primary federal standards "as expeditiously as practicable but * * * in no case later than three years" after approval of the plan unless the Administrator of EPA grants an extension. 42 U.S.C. §§ 1857c-5(a) (2) (A) (i), 1857c-5(e) (1). The Administrator approved the D.C. plan in 1972 (37 Fed. Reg. ...