any RFP benchmark required by the 1982 Plan.
MTC also contends that, in any event, the record demonstrates that RFP has been satisfied for the Bay Area for both ozone and carbon monoxide whether RFP is measured by the terms of the 1982 Plan or the 1990 amendments. Plaintiffs vigorously dispute this assertion and contend that MTC's calculations and projections are flawed in various respects. As MTC's cross-motion raises the threshold issue of which RFP standard MTC's efforts must be measured against, we address this motion first.
MTC's Cross-Motion for Summary Judgment
MTC seeks a ruling that, as a matter of law, reasonable further progress must now be measured solely in accordance with the emission reduction schedules set forth in the 1990 amendments, and therefore MTC's efforts to satisfy its obligation under the 1982 Plan, to adopt sufficient additional TCMs to achieve RFP, should be evaluated only by reference to these schedules.
We begin by noting that the 1990 amendments did not change the general concept of "reasonable further progress." Under both the 1977 and the 1990 amendments, reasonable further progress denotes the annual incremental reductions in emissions that are necessary to achieve federal air quality standards (NAAQS) by the statutory deadline. 42 U.S.C. § 7501(1).
Every state implementation plan ("SIP") must contain enforceable measures that provide for reasonable further progress. 42 U.S.C. § 7502(b)(3)(1977) and § 7502(c)(2)(1990); Delaney v. EPA, 898 F.2d 687, 692 (9th Cir. 1990); Citizens for a Better Environment v. Deukmejian, 746 F. Supp. 976, 979-80 (N.D. Cal. 1990) ("CBE II ").
The 1982 Plan (the SIP for the Bay Area), contains RFP benchmarks for ozone and carbon monoxide based on data available at the time the Plan was prepared. Thus, for example, with respect to ozone, the 1982 Plan committed to an "RFP line" that required reducing hydrocarbon emissions by 85 tpd and achieving a 430 tpd hydrocarbon emissions level in the Bay Area by 1987, the then applicable statutory deadline. CBE II, 746 F.Supp. at 982-83. The 1982 Plan contemplated that if this and other RFP benchmarks committed to were satisfied, the Bay Area would achieve NAAQS for ozone and carbon monoxide by 1987.
Unfortunately, most areas, including the Bay Area, failed to achieve NAAQS by 1987. In response, Congress amended the Clean Air Act in 1990 to require that most SIPs, including the 1982 Plan, be revised over the next two to three years to provide for strategies that will result in attainment of NAAQS by the new statutory deadlines. See 42 U.S.C. §§ 7511a(b)(1)(A)(i), 7512a(a)(7). For the Bay Area, which has been designated a "moderate" non-attainment area, NAAQS for ozone must be achieved by 1996; NAAQS for carbon monoxide must be achieved by 1995.
Congress also added some additional teeth to the RFP requirement, hoping to avoid a repetition of its experience with the 1977 amendments, which generated disappointingly little compliance with the statutory deadline. Previously, RFP referred only to such annual incremental reductions that were sufficient in the judgment of the Administrator to allow for attainment by the statutory deadline; under the 1990 amendments it refers to such annual incremental reductions in emissions "as are required by this part" or that may be required by the Administrator for the purpose of ensuring that NAAQS are attained by the statutory deadline. 42 U.S.C. § 7501 (1977 and 1990).
The phrase "as are required by this part" refers to specific reduction schedules that must be incorporated into the new, revised SIPs. In moderate non-attainment areas, for example, the revised SIPs must demonstrate that hydrocarbon emissions will be reduced 15 percent by November 15, 1996 from the base year of 1990 (accounting for any growth) pursuant to section 182(b), 42 U.S.C. § 7511a(b)(1)(A)(i). Similarly, the revised SIPs must demonstrate that carbon monoxide (CO) levels will decline 23.73 percent in the Bay Area from current levels by December 31, 1995, beginning from base year 1989. Section 187(a)(7), 42 U.S.C. § 7512a(a)(7), and April 5, 1991 Order at 4.
In short, once the SIP for the Bay Area is revised pursuant to the 1990 amendments, it will incorporate new RFP benchmarks reflecting the new reduction schedules provided by Congress. 42 U.S.C. § 7511a(b)(1)(A) (State shall submit SIP revision within three years that provides for 15 percent reduction in VOCs from baseline emissions, accounting for growth) (emph. added); 42 U.S.C. § 7512a(a)(7) (State shall submit a revision attainment of carbon monoxide NAAQS by applicable attainment date) (emph. added); 42 U.S.C. §§ 7502(c)(2), 7501(1).
MTC's motion poses the issue whether, notwithstanding the new reduction schedules noted above, Congress intended to hold agencies to their RFP commitments in existing SIPs during this interim SIP revision period.
One thing should be made immediately clear. This is not an "either-or" proposition. It is not a question of whether, between now and the time SIPs are formally revised, RFP obligations are governed only by the 1982 Plan or only by the 1990 amendments. The reductions required by the 1990 amendments "apply" during this interim period in the sense that the revised SIP for the Bay Area must be able to demonstrate that the reduction requirements contemplated by the amendments have been underway and that the percentage reductions will be satisfied by 1995 (for ozone) or 1996 (for CO). The question is, do the RFP commitments in the 1982 Plan remain enforceable during this interim period, or are obligations relating to RFP now governed solely by reference to the 1990 amendments.
Congress neglected to address this precise issue, either by statute or through legislative history,
thus creating some ambiguity and uncertainty, and there is no apparent case authority; thus, we turn to the statutory scheme and Congress' overall purposes to resolve this question. In re Arizona Appetito's Stores, Inc., 893 F.2d 216, 219 (9th Cir. 1990) ("We must adopt the interpretation which 'can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested'"). With these principles in mind, we turn to the statutory scheme and the overall purposes of the Clean Air Act.
As described in CBE I, Congress' plan for achieving clean air centers on making states accountable through their respective SIPs. Once EPA approves a SIP, the state is required to comply with it unless and until a new, revised SIP is formally approved and takes its place. Absent such a formal revision, states are "relegated to a lone option: compliance [with the existing SIP]." Friends of the Earth v. Carey, 535 F.2d 165, 178 (2nd Cir. 1976), cert. denied, 434 U.S. 902, 54 L. Ed. 2d 188, 98 S. Ct. 296 (1977); CBE I, 731 F.Supp. at 1452, and n.3 (and cases cited therein); Natural Resources Defense Counsel v. New York, 668 F. Supp. 848, 850-51 (S.D.N.Y. 1987). To further enhance accountability, Congress gave citizens the right to enforce SIP strategies in federal court. 42 U.S.C. § 7604(a); Friends of the Earth v. Carey, 535 F.2d at 172-73 (the "very purpose of the citizens' liberal right of action is to stir slumbering agencies and to circumvent bureaucratic inaction that interferes with the scheduled satisfaction of the federal air quality goals").
Consistent with this, the 1990 amendments include two strongly worded savings clauses, one of which is pertinent here:
Any provision of any applicable implementation plan that was approved or promulgated by the Administrator [of EPA] pursuant to this section as in effect before November 15, 1990 shall remain in effect as part of such applicable implementation plan, except to the extent that a revision to such provision is approved or promulgated by the Administrator pursuant to this chapter.