Jump to Navigation
Jump to Content

Virginia v. Browner

ELR Citation: 26 ELR 21245
Nos. 95-1052, 80 F.3d 869/42 ERC 1353/(4th Cir., 03/26/1996)

The court upholds the U.S. Environmental Protection Agency's (EPA's) disapproval of a proposed Virginia state implementation plan (SIP), and holds constitutional provisions of Clean Air Act (CAA) Title V that subject a state to sanctions if the state fails to submit a SIP to EPA or submits a SIP that EPA disapproves for failure to comply with CAA §502(b). The court first holds that although Virginia has corrected four of the five defects in its originally proposed Title V SIP, remand of this case to EPA is inappropriate. Virginia concedes that EPA properly disapproved its original submission on the basis of those defects. Also, EPA has not yet determined whether Virginia's new submission is adequate. Absent any agency record, the court has no way of knowing whether the new submission complies with the CAA. The court next holds that EPA did not arbitrarily and capriciously disapprove the SIP based on agency findings that the SIP contained inadequate judicial review provisions. The SIP provision limiting the availability of judicial review to persons with pecuniary and substantial interests violates CAA §502(b)(6). The court rejects the state's argument that the phrase "who could obtain judicial review of that action under applicable [state] law," which appears at the end of §502(b)(6), modifies all three categories of person—applicants, persons who participated in the public comment process, and any other persons—to whom that section requires states to grant judicial review. The court holds reasonable EPA's interpretation that §502(b)(6) is satisfied if a state grants standing only to those participants in the public comment process who would have Article III standing to sue in federal court. The court further holds that Virginia's "pecuniary and substantial interest" requirement does not satisfy the Article III test, because a plaintiff need not show pecuniary harm to have Article III standing.

The court next holds that the sanctions provisions of Title V are constitutional, because the CAA does not compel states to modify their standing rules, it merely induces them to do so. The sanction that limits the use of highway funds does not rise to the level of outright coercion, because a state does not lose any funds that would be spent in attainment areas. Even within nonattainment areas, funds may be spent on projects designed to promote safety or reduce air pollution. In addition, the conditions on spending are reasonably related to the goal of reducing air pollution. The court, therefore, holds that the highway sanction is a valid exercise of Congress' spending power and comports with the Tenth Amendment to the U.S. Constitution. The court also holds that the offset sanction, which limits new construction or modification of major stationary sources of air pollution, is constitutional, because it regulates private pollution sources, not states. Finally, the court holds that the provision under which EPA will promulgate a federal implementation plan in lieu of a SIP is constitutional, because this provision does not command a state to regulate.

[A related opinion is published at 26 ELR 20816. Briefs and pleadings in related litigation are digested at BRIEFS & PLEADS. II 66376 and 66434.]

Counsel for Petitioner
Mary Jo Leugers, Ass't Attorney General
Attorney General's Office
900 E. Main St., Richmond VA 23219
(804) 786-2071

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

Before MURNAGHAN and M. BLANE MICHAEL, Circuit Judges, and JAMES H. MICHAEL Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.