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Trustees for Alaska v. Fink

ELR Citation: 24 ELR 20550
Nos. No. 92-36932, 17 F.3d 1209/38 ERC 1389/(9th Cir., 03/01/1994)

The court holds that the city of Anchorage, Alaska, could condition its commitment to a transportation control measure (TCM) in Alaska's state implementation plan (SIP) on the availability of funds. To combat its long-standing air pollution problem, Anchorage devised an air quality plan that included a plan to expand the mass transit bus fleet. This TCM was incorporated into the SIP in 1982, however, the city has not significantly expanded its bus fleet and service hours have declined. The court first finds the language of §172(b)(7) of the 1977 amendments to the Clean Air Act—SIPs "shall . . . commit the financial . . . resources necessary to carry out" the TCMs—unclear. Therefore, the court defers to the U.S. Environmental Protection Agency's (EPA's) interpretation of this section as set forth in a guidance document where it interprets §172(b)(7) to allow conditional commitment to a program that had not yet received funding. The court finds EPA's interpretation reasonable and supported by legislative history, and holds that the city could make a §172(b)(7) SIP commitment that was conditioned on funding becoming available. The court next holds that the city did condition its commitment to the bus expansion program on funding becoming available. The plan expressly warned that before any expansions could occur, the gap between expenses and fares must be closed and alternative sources of revenue uncovered. Finally, the court holds that the plaintiff citizen groups failed to meet their burden of showing that the city violated Alaska's SIP by not taking reasonable steps toward satisfying the condition. The groups did not provide any evidence showing how Anchorage could have done more to satisfy the condition, but instead argued that the failure to expand the bus service in itself established a violation.

Counsel for Plaintiffs
Eric Smith
731 E. 8th Ave., Anchorage AK 99501
(907) 276-8451

Counsel for Defendants
John W. Phillips
Heller, Ehrman, White & McAuliffe
1900 Enserch Ctr.
550 W. 7th Ave., Anchorage AK 99501
(907) 277-1900