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November 9, 2001


The opinion of the court was delivered by: Thelton E. Henderson, Judge, United States District Court


These matters came before the Court on Tuesday, November 6, 2001, on the parties' cross-motions for summary judgment under Federal Rule of Civil Procedure 56. After careful consideration of the parties' written and oral arguments, this Court GRANTS IN PART and DENIES IN PART each of the parties' motions as described in the discussion below.


This suit arises out of the federal Clean Air Act ("CAA"), 42 U.S.C. § 7401-7671q (2001), the history of which has been well-documented elsewhere. See, e.g., Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 1448, 1451-52 (N.D.Cal. 1990) [hereinafter "CBE I"]. As part of the CAA, states are required to develop, and submit to the Environmental Protection Agency ("EPA") for approval, a state implementation plan ("SIP") for achieving and maintaining National Ambient Air Quality Standards ("NAAQS"). At issue in this case is the portion of the California SIP applicable to the San Francisco Bay Area, which remains a non-attainment area for the ozone NAAQS thirty years after that standard was first promulgated. See, e.g., Approval and Promulgation of Ozone Attainment Plan and Finding of Failure to Attain; San Francisco Bay Area, 66 Fed. Reg. 17,379, 17,385 (proposed Mar. 30, 2001) (documenting the Bay Area's failure to attain the ozone NAAQS for the period 1998-2000).

Specifically, Plaintiffs in this suit challenge the implementation status of Transportation Control Measure 2 ("TCM 2"), a measure set forth in the 1982 Bay Area Air Quality Plan ("1982 Plan").*fn1 The remaining Defendants in this case are the Metropolitan Transportation Commission ("MTC") and San Francisco Municipal Railway ("MUNI").*fn2

Although first submitted in 1982 and approved by the EPA in 1984, TCM 2 remains as part of the SIP. TCM 2 is defined as follows: "Support post-1983 improvements identified in transit operator's [sic] 5-year plans, [and] after consultation with the operators adopt ridership increase target for 1983-1987." 1982 Plan at B-3 (Ex. A to Def. MTC's Opening Mem.). The 1982 Plan also lists emission reduction estimates "predicated on a 15% ridership increase. The actual target would be determined after consultation with the transit operators." Id. Ridership increases were expected to come from "productivity improvements," rather than a significant growth in the size of the transit system. Id. In order to achieve the goals of TCM 2, the Plan set forth the following four-part implementation schedule:

• 6 major transit operators*fn3 adopt FY 1983-87 plans by July, 1982.
• MTC consults with operators on ridership targets by Jan., 1983.
• MTC, through implementation of the TIP [Transportation Improvements Plan] and allocation of regional funds, seeks to ensure operators' 5-year plans are implemented.
• Ridership gains are monitored through annual RFP [Reasonable Further Progress] reports.

Id. Finally, the 1982 Plan describes TCM 2 as "basically an extension of TCM #1," id., which requires "reaffirm[ation of a] commitment to 28% transit ridership increase between 1978 and 1983," id. at B-2.

The primary dispute in this case is whether TCM 2 requires, as Plaintiffs contend, that MTC, MUNI, and the other regional transit operators achieve a 15% regional transit ridership increase over 1982-83 levels. Defendants argue that TCM 2 only requires them to complete the four steps enumerated in the implementation schedule. Because the interpretation of TCM 2 is a legal question, the parties agree that this case is appropriate for adjudication on summary judgment.


Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Toscano v. Prof'l Golfers Ass'n, 258 F.3d 978, 982 (9th Cir. 2001). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence and must view the evidence in the light most favorable to the nonmoving party. Id. at 255.

A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Id. at 322-323. However, on an issue for which its opponent will have the burden of proof at trial, the moving party can prevail merely by "pointing out to the District Court . . . that here is an absence of evidence to support the nonmoving party's case." Id. at 325. If the moving party meets its initial burden, the opposing party must then "set forth specific facts showing that there is a genuine issue for trial" in order to defeat the motion. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250.


At issue in this suit are Defendants' obligations under TCM 2. Before discussing the substance of those obligations, this Court must first address the jurisdictional matters raised by the parties.

I. Article III Standing

Three criteria must be satisfied before an organization has standing under Article III to bring suit on behalf of its members. First, the organization's members must have standing to sue individually. Second, the organization must be seeking to protect interests that are germane to its purpose. Finally, neither the claim asserted nor the relief requested must require direct participation of the organization's members in the lawsuit. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).

Here, Plaintiffs have sufficiently demonstrated that the interests advanced in this lawsuit fall within the mission of each Plaintiff organization. See Pls.' Opening Mem. at 11 (and declarations cited therein). Moreover, this Court agrees with Plaintiffs that the direct participation of individual members is unnecessary. Thus, the Court concludes, and Defendants do not dispute, that Plaintiffs have satisfied the second two prongs of organizational standing.

Defendant MTC argues, however, that Plaintiffs lack standing because they are unable to satisfy the first requisite of organizational standing, that Plaintiffs' members would have standing to sue individually. In order to satisfy the standing requirements of Article III, an individual must show:

(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

MTC argues that Plaintiffs fail to meet this standard because the alleged injuries are not "fairly traceable" to Defendants' actions and because a favorable decision would not be likely to redress the injuries.

This Court is not so persuaded, and it finds that individual members of Plaintiffs' organizations would have standing to sue for the following reasons. First, it is beyond dispute, that Plaintiffs' members have alleged injuries that satisfy the "injury in fact" requirements.*fn4 Plaintiffs claim a variety of injuries, including adverse health effects, aesthetic injuries, and economic harm. See Pls.' Opening Mem. at 11-12 (and declarations cited therein). These alleged injuries are more than sufficient to satisfy the first requirement for individual standing. See, e.g., Friends of the Earth, 528 U.S. at 183 (recreational, aesthetic, and economic injuries are sufficient to confer standing); Natural Res. Def. Council, Inc. v. United States Envtl. Prot. Agency, 507 F.2d 905, 910 (9th Cir. 1974) (being "compelled to breathe air less pure than that mandated by the Clean Air Act" is sufficient).

In addition, the injuries are fairly traceable to the challenged actions of Defendants. MTC cites the SIP itself to support its contention that TCMs have "virtually no impact" on ozone because they reduce hydrocarbons and nitrogen oxides (NOx) simultaneously. 1982 Plan at 102. Plaintiffs cite contrary evidence that NOx reductions lead to reduced ozone levels. Pls.' Reply at 4-5 (and citations therein). While the precise impact of TCM 2 on ozone levels is a disputed question of fact that this Court cannot decide on motions for summary judgment, the facts indicate that TCM 2 has at least some, although perhaps minimal, impact on reducing ozone.*fn5 Although perhaps not as compelling an injury as could be imagined, this slight impact is sufficient to satisfy traceability. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 690 n. 14 (1973) (refusing to adopt the government's argument that standing should be limited to those who have been "significantly" affected by agency action, instead holding that any "direct stake," including a "trifle," is enough to establish standing). Moreover, even if Plaintiffs could not show the required nexus between TCM 2 and reduction in ozone levels, it is undisputed that TCM 2, through reductions in NOx, would reduce haze and smog. See, e.g., Regional Haze Regulations, 64 Fed. Reg. 35,714, 35,715 (July 1, 1999). Thus, traceability is clearly met for Plaintiffs' alleged aesthetic and economic injuries resulting from elevated levels of smog.

Finally, it is more than likely that a favorable decision for Plaintiffs will redress their alleged injuries, thereby satisfying the third requirement for individual standing. Plaintiffs here seek injunctive relief to mandate that Defendants implement TCM 2.*fn6 As discussed above, Plaintiffs' alleged injuries are fairly traceable to Defendants' alleged failure to implement TCM 2. Thus, it goes without question that the injunctive relief sought by Plaintiffs would alleviate the alleged injuries. Even though Plaintiffs' injuries might not be completely eliminated by the implementation of TCM 2, any increase in air quality that would result from a favorable decision is sufficient to satisfy the "minimal requirements of Article III." Pub. Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 73 (3d Cir. 1990) (holding that, to have standing, plaintiffs must only show that the injunctive relief requested would "decrease" pollution, not that it would return a polluted waterway to "pristine condition").

In short, individual members of Plaintiffs' organizations satisfy the three requirements for Article III standing. Because Plaintiffs have also satisfied the other requirements for organizational standing, this Court rejects Defendant MTC's argument that ...

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