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Environmental Defense Fund v. EPA

ELR Citation: 26 ELR 20968
Nos. 94-1044, -1062, 82 F.3d 451/42 ERC 1577/(D.C. Cir., 04/19/1996)

The court upholds portions of the U.S. Environmental Protection Agency's (EPA's) transportation and general conformity rules that establish criteria and procedures for determining whether a local transportation plan or transportation improvement program (TIP) conforms to an applicable state implementation plan (SIP). The court first rejects petitioner environmental groups' contention that the rules' "grandfather" provisions conflict with the conformity mandate of Clean Air Act (CAA) §176(c)(1) and (c)(2). The grandfather provisions exempt from the rules' conformity determination requirement those projects that have undergone recent National Environmental Policy Act (NEPA) analyses. The statute vests EPA with discretion to set the appropriate frequency for making conformity determinations so long as such determinations are not less frequent than every three years. Exercising its discretion, the Agency set a conformity determination deadline of five years after a NEPA analysis for nontransportation projects and three years after a NEPA analysis for transportation projects. The court next holds that a rule allegedly allowing approval of a TIP when the TIP's transportation control measures (TCMs) are behind the schedule established in the applicable SIP reflects a reasonable interpretation of statutory language. The environmental groups alleged that the rule conflicts with the CAA's mandate that no transportation project be approved unless it requires implementation of TCMs in strict compliance with the SIP schedules. The court holds that the statute requires congruity or compatibility, not exact correspondence, between the SIP TCM schedule and the TIP's implementation schedule. The court further holds that a regulation requiring transportation plans and TIPs to provide for timely implementation of only those TCMs that are eligible for funding under 23 U.S. Code or the Federal Transit Act also reflects a reasonable interpretation of the CAA.

The court next holds that EPA acted within its delegated discretion in construing CAA §176(c)'s provision that a conformity determination may be made for a transportation plan or TIP before EPA approves a revised SIP if, inter alia, the plan or TIP contributes to annual emissions reductions in ozone and carbon monoxide nonattainment areas consistently with §§182(b)(1) and 187(a)(7). EPA's rules for determining whether a plan or TIP contributes to annual emissions reductions during that period requires comparisons between volatile organic compound, nitrogen oxide, and carbon monoxide levels in 1990, in the future assuming the plan or program is not implemented, and in the future assuming the plan or program is implemented. Although the Agency did not disagree that under its "contribute to" regime a plan or program may increase emissions if nonplan or nonimprovement program projects reduce emissions enough, the court finds the statute ambiguous and holds that it was reasonable for the Agency to construe the statute as not necessarily requiring an individual plan or program to reduce emissions. The court next holds that EPA reasonably defined "transportation plan or program" in CAA §176(c)(2)'s conformity determination requirement to include only plans or programs adopted by metropolitan planning organizations. Before any plan or improvement program can be included in the state's plan or program, the relevant metropolitan planning organization must find that it conforms to the SIP. The court also holds that EPA properly limited the phrase "transportation plans, programs, and projects" in the statutory conformity requirements to encompass only highway or transit projects. The types of transportation that Congress wished to reach with the special transportation conformity rules were those modes over which metropolitan planning organizations and recipients of funds under 23 U.S. Code or the Urban Mass Transportation Act have authority. Metropolitan planning organizations and recipients of highway and transit funds have no authority with respect to airports, shipping, or nontransit rail transportation.

The court holds that EPA's definition of indirect emissions from federally supported activities—which includes only emissions that are reasonably foreseeable and within the relevant agency's continuing responsibility—is consistent with the CAA's requirement that federally supported activities not cause or contribute to a SIP violation. The court further holds that EPA properly exercised its authority in creating de minimis exemptions from the conformity rules. Finally, the court holds reasonable an EPA regulation that allows a state to change its SIP to accommodate a federal action as long as the state complies with certain safeguards intended to ensure that the revision is forthcoming. Although the CAA's literal terms would prevent the federal action from continuing until such time as the SIP revision is approved, that reading would frustrate the congressional intent supporting the statute. EPA's regulation, however, is consistent with the Act's purpose.

Counsel for Petitioners
Howard I. Fox
Sierra Club Legal Defense Fund
1625 Massachusetts Ave. NW, Ste. 702, Washington DC 20036
(202) 667-4500

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

Before: SILBERMAN, GINSBURG, and HENDERSON, Circuit Judges.