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1000 Friends of Md. v. Browner

Citation: 32 ELR 20134
No. No. 00-1489, 265 F.3d 216/53 ERC 1001/(4th Cir., 09/11/2001)

The court denies an environmental group's petition to review the U.S. Environmental Protection Agency's (EPA's) approval of Maryland's revised motor vehicle emissions budget (MVEB) for the Baltimore ozone nonattainment area. In 1999, EPA determined that the MVEB in the state's attainment demonstration state implementation plan (SIP) for the Baltimore area was inadequate for Clean Air Act (CAA) conformity purposes. When the state submitted a revised MVEB, it used updated data that indicated more vehicles and higher emissions than those provided in the original MVEB. EPA then approved the revised MVEB even though the revised budget was higher than the original inadequate budget. An environmental group petitioned for judicial review of EPA's approval, arguing that EPA violated the CAA by approving a revised MVEB that lacked the support of new air quality modeling. The court first holds that it has jurisdiction over the case. The group is not challenging the legality of the adequacy regulations in a way that would affect whether the petition for review is properly before the court. The court also rejects a claim that the petition for review is premature. Likewise, the court holds that the group has standing. In addition, the group's comments sufficiently raised the question of whether additional modeling was required before the revised MVEB could be deemed adequate, thus, the group did not waive this argument.

The court next holds that the CAA does not expressly require the submission of new modeling when the MVEB contained in a previously submitted SIP is revised or before the revised budget may be found adequate for conformity purposes. Although CAA § 182(c)(2)(A) requires attainment demonstrations to be supported by sufficient modeling, it does not establish the time frame for that modeling, nor does it specify that new modeling must be performed when a SIP is revised. Thus, the CAA does not prevent the use of previously performed modeling that, as here, shows attainment. Further, although the CAA generally contemplates that conformity determinations will be made by reference to an approved SIP, the Act does not address how conformity determinations should be made in the absence of an approved SIP. Therefore, it cannot be said that EPA's approval of the MVEB in the absence of an approved SIP for the Baltimore area violated CAA § 176(c). Likewise, EPA's approval of the MVEB without new modeling is not inconsistent with CAA §§ 110(k)(3) and 110(l)'s requirements for approval of a SIP revision because the CAA does not require new modeling. The court further holds that EPA did not act arbitrarily or capriciously when it declined to require new modeling for the revised MVEB. EPA factored into its MVEB approval the sufficiency of existing modeling, which demonstrated the revision's effects. Also, even though the revised MVEB exceeded the original MVEB, the CAA does not require EPA to impose transportation control measures on the revised MVEB. Such measures need only be adopted when actual emissions exceed the budgeted level. Last, the court holds that EPA did not violate the Administrative Procedure Act's concise general statement requirement because the Agency sufficiently explained the basis and purpose of its approval of the MVEB.

Counsel for Petitioner
Jeffrey Herrema, Student Attorney
Environmental Law Clinic
University of Maryland School of Law
515 W. Lombard St., Baltimore MD 21201
(410) 706-0564

Counsel for Respondents
David J. Kaplan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Traxler, J. Before Luttig and Thornburg, JJ.