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August 19, 1991

PETE B. WILSON, et al., Defendants; SIERRA CLUB, Plaintiff, v. METROPOLITAN TRANSPORTATION COMMISSION, et al., Defendants

The opinion of the court was delivered by: HENDERSON


 This matter came before the Court on May 9, 1991, and June 18, 1991, on plaintiffs' Motion for Contempt, or in the Alternative, Summary Judgment Regarding Transportation Control Measures, and the Metropolitan Transportation Commission's ("MTC") Cross-Motion for Partial Summary Judgment. The Court subsequently ordered supplemental briefing. Now, having considered all of the parties' oral arguments and written submissions, and having consulted with the court appointed neutral expert Professor Martin Wachs of the University of California at Los Angeles, concerning the technical issues raised by plaintiffs' motion for contempt or summary judgment, the Court denies MTC's cross-motion and grants in part, and denies in part, plaintiffs' motion for contempt or summary judgment for the reasons set forth below.


 The 1982 Bay Area Air Quality Plan ("1982 Plan"), which represents the plan for achieving minimum federal air quality standards in the Bay Area, required MTC to implement a contingency plan in the event the Bay Area was not making Reasonable Further Progress ("RFP") toward attaining the National Ambient Air Quality Standards ("NAAQS") for carbon monoxide and ozone. On September 19, 1989, we found that (1) RFP had not been made for ozone or carbon monoxide in the Bay Area, and (2) that MTC had nevertheless failed to implement the contingency plan for the transportation sector. See, Citizens for a Better Environment v. Deukmejian, 731 F. Supp. 1448 (N.D. Cal. 1990) ("CBE I").

 Accordingly, we ordered MTC to implement the contingency plan for the transportation sector, which contains two components. Id. at 1461. The second component, which is at issue here, required MTC to adopt, within six months, sufficient additional transportation control measures ("TCMs") to bring the region "back within the RFP line." Id. 1982 Plan at H-2. In response, MTC passed Resolution 2131 on February 28, 1990, adopting 16 additional TCMs.

 These 16 additional TCMs (referred to by the parties as the "2131 TCMs" after the Resolution number) included, among other things, preservation of ferry services added after the October 1989 earthquake, fare coordination between BART and buses, expanding participation in Caltrans' Fuel Efficient Traffic Signal Management Program, and a request that the state legislature raise the Bay Bridge toll to two dollars. MTC estimated that these 16 measures would reduce hydrocarbon (or VOC -- volatile organic compound) emissions, which are a precursor to ozone, by 3.83 tons per day ("tpd") by 1996. The measures were also estimated to reduce carbon monoxide emissions by 74.1 tpd by 1996. Brittle Decl., Exh. E; Plaintiff's Exh. A at 036.

 Plaintiffs contend that the adoption of the above 16 measures did not fulfil MTC's obligation under the contingency plan because they will not achieve sufficient reductions to put the San Francisco Bay Area back on the "RFP line" as defined in the 1982 Plan. Accordingly, they urge us to find MTC in contempt of our September 19, 1989, ruling requiring MTC to adopt sufficient TCMs to bring the region back within the RFP line; alternatively, they seek a summary judgment that MTC is in continuing violation of the contingency plan.

 MTC does not dispute its obligation, under the 1982 Plan's contingency plan, to adopt sufficient additional TCMs to put the Bay Area back on the RFP line. However, it contends that to determine whether the region is currently making reasonable further progress (and therefore "on the RFP line"), we must look to the new reduction schedules set forth in the recent 1990 amendments to the Clean Air Act ("1990 amendments"), rather than the RFP benchmarks committed to in the 1982 Plan. Thus, MTC moves for a partial summary judgment that the 1990 amendments supplant 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). *fn1" 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).

 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, *fn3" 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. *fn4"

 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.

 Section 110(n), 42 U.S.C. § 7410(n)(1) (emph. added). *fn5" This unconditional and sweeping savings clause -- which saves "any provision" of "any SIP" until the SIP is formally revised -- makes it "crystal clear" that Congress intended to hold agencies to their existing SIP obligations pending approval of new SIPs. See December 21, 1990 Order at 16-17 (savings clauses preserve conformity requirements in 1982 Plan). In other words, during this interim period precipitated by the 1990 amendments, Congress -- perhaps anticipating the delays and vagaries inherent in the SIP revision process -- chose to maintain the enforceability of approved SIPs unless and until they are formally replaced by a revised SIP.

 Turning to the RFP provisions at issue here, we conclude, and MTC agreed at oral argument, that once a SIP translates the general RFP requirement into specific emission reduction and emissions level commitments, that such commitments become a "provision of the SIP." Indeed, as such commitments are integral, indispensable components of the SIP, they are clearly covered under the plain meaning of the term "any provision." *fn6" Accordingly, it would appear that the section 110(n) savings clause saves RFP commitments in existing SIPs pending adoption and EPA approval of a new revised SIP.

 This, however, does not end the matter. The RFP commitments in the 1982 Plan were designed with the then applicable 1987 statutory deadline in mind. Thus, for example, the 1982 Plan contains a visual RFP graph for hydrocarbons that begins in 1979 and ends in 1987. MTC contends that because the 1982 Plan did not project RFP beyond 1987, the RFP commitments in the Plan only "existed" through 1987, leaving the Bay Area without any enforceable or definable RFP commitments until Congress amended the Clean Air Act in 1990 to include new reduction schedules and attainment deadlines. Consequently, when Congress enacted the section 110(n) savings clause in 1990, there simply were no RFP commitments left to be saved. In other words, the savings clause is inapplicable because there are no RFP provisions to save.

 We disagree that the RFP commitments in the 1982 Plan suddenly ceased to exist on January 1, 1988. Congress was clear that SIPs remain in force until a new SIP is approved regardless of whether the statutory deadline has passed. There is no basis or authority for singling out a central component of the SIP -- the RFP commitments -- and determining those provisions and commitments vanish simply because the statutory deadline passes. Cf., CBE II, 746 F. Supp. 976 (enforcing RFP commitments in 1982 Plan regarding hydrocarbons in 1990). Indeed, the 1982 Plan contains many provisions whereby certain events or commitments were to occur or be satisfied by certain dates. However, the fact that those dates passed without compliance, or that the 1987 statutory deadline expired, did not automatically parse those provisions from the 1982 Plan. On the contrary, to the extent such provisions concerned enforceable components, the courts have routinely enforced, and in fact are obliged to enforce, such provision, despite the passage of governing deadlines. See, American Lung Ass'n v. Kean, 670 F. Supp. 1285, 1288-89 (D.N.J.), aff'd, 871 F.2d 319, 322 (3rd Cir. 1989); NRDC v. New York, 668 F.Supp. at 848, 852, 854. There is no basis for treating RFP commitments any differently. The RFP benchmarks in the 1982 Plan concern specific emission reductions and emission levels with respect to hydrocarbons and ozone. Indeed, as EPA's February 14, 1990 correspondence to MTC reflects, the commitment to achieve these specific emission levels and reductions can be enforced just as well now as it could in 1987 ("MTC's task is to develop and adopt TCMs that provide sufficient actual, enforceable emission reductions to eliminate the 1987 CO and HC [Hydrocarbon] shortfalls"). Plaintiff's Exh. G at 1. *fn7"

 MTC also argues that, even assuming RFP commitments exist to be saved, we should nonetheless construe the section 110(n) savings clause to except RFP commitments. Otherwise, MTC argues, there will be a conflict between MTC's obligations to satisfy the RFP benchmarks in the 1982 Plan and its obligations to demonstrate that the reductions required by the 1990 amendments will be satisfied by 1995 and 1996. We can avoid such a conflict, MTC urges, if we simply view the RFP commitments in the 1982 Plan as ending in 1982 and the "new" reduction schedules set forth in the 1990 amendments as applying from now henceforth.

 While this argument has superficial appeal, we conclude that MTC has set up a false conflict. If Congress intended to keep existing SIPS fully enforceable, absent substitution of a new SIP, there is no "conflict" in requiring MTC to abide by the 1982 Plan, including the RFP commitments contained therein, while the 1982 Plan undergoes the lengthy revision process, even though this may involve some additional obligation or effort on MTC's part.

 Indeed, construing the savings clause to except RFP commitments from its scope, as MTC urges, would create a gap in SIP enforceability that we do not believe Congress intended, and is contrary to the overall statutory scheme. As explained above, maintaining SIP enforceability pending the SIP revision process is a cornerstone of the statutory scheme. Yet MTC's approach arguably leaves states without RFP commitments during this lengthy interim period. Absent certain circumstances not relevant here, district courts are generally limited to enforcing provisions of an existing SIP. Delaware Valley Citizens Council v. Davis, 932 F.2d 256, 266 (3rd Cir. 1991) (district court lacked subject matter jurisdiction over direct statutory violations asserted, where no violations of the SIP, itself, were involved); CBE I, 731 F.Supp. at 1454; NRDC v. New York, 668 F.Supp. at 854 (court has authority to enforce provisions of the SIP). Thus, there is no apparent basis for enforcing the new reduction schedules at this juncture, since they have yet to be incorporated into an approved SIP. *fn8"

 To the extent that MTC is asking the Court to treat the 1982 Plan as having been de facto amended by the new reduction requirements contained in the 1990 amendments, we cannot accept this invitation, as SIP modification and revision can not be judicially effected. See, Friends of the Earth, 535 F.2d at 178-179 (Because SIP may only be modified pursuant to formal revision or ...

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