District Court Dodges Constitutional Barriers, Declares Pennsylvania in Contempt for Stalling on Auto I/M

F. L. McChesney

Controlling air pollution from automobiles has proved to be one of the most difficult objectives of the Clean Air Act to achieve.¹ Motor vehicle emissions account for a large percentage of the total concentrations of hydrocarbons, carbon monoxide (CO), photochemical oxidants (ozone), and lead in urban air, and most of the 200 largest cities in the country have health-threatening levels of at least one of these pollutants in their air.² Nonetheless, attempts to control these emissions have generated intense political controversy.

The Clean Air Act establishes a dual strategy to reduce such pollution. It requires installation of emission controls on new vehicles to reduce emissions per vehicle mile³ and it provides a variety of transportation control measures to reduce total vehicle miles traveled.⁴ Central to the success of emission controls is the vehicle in-use inspection and maintenance (I/M) program.⁵ However, the Environmental Protection Agency's (EPA's) early attempts to require the states to implement transportation control plans and I/M programs were frustrated by staunch local resistance and largely successful court challenges. In the 1977 Amendments to the Clean Air Act,⁶ Congress provided EPA with powerful new authority to prod the states into action while attempting to avoid the constitutional infirmities of the existing program.

The 1977 Amendments mandate I/M programs only in areas not in attainment of the national ambient air quality standards (NAAQS) for CO and ozone. States failing to develop required I/M programs are subject to sanctions including a cut-off of federal highway and sewage construction grant funds, a moratorium on construction of new stationary sources, enforcement orders, and civil penalties. While only two of the 29 states required to develop and implement I/M programs have failed to submit state implementation plans (SIPs) with acceptable programs, several have delayed implementation, arguing that the action-forcing sanctions impinge on their sovereignty. Nevertheless, EPA has threatened to impose sanctions on several states and has done so in both California, which lost $350 million in federal highway funds last year, and in Kentucky.⁷

In the first court decision to construe this aspect of the 1977 Amendments, Pacific Legal Foundation v. Costle,⁸ the Ninth Circuit upheld the sanctions imposed against California, rejecting constitutional arguments that had prevailed in the pre-1977 cases. But it was not until recently that a court has been asked to take the lead in administering enforcement sanctions against a noncomplying state. In Delaware Valley Citizens' Council forClean Air v. Pennsylvania,⁹ a federal judge in Pennsylvania ordered the state's federal highway funds suspended when the state enacted legislation preventing use of public funds for implementation of an I/M program already adopted by the state. Though the rather unique facts of the case may limit its precedential weight, it stands out as an intriguing case study of how an aggressive environmental group and a creative federal judge can set an I/M program in motion despite the respective intransigence and indifference of the state and federal governments.

I/M Under the 1970 Clean Air Act

Statutory Framework

The basic scheme of the Clean Air Act is a system of "cooperative federalism" in which the federal regulatory framework is primarily implemented by the states. The Act requires the Administrator of EPA to set NAAQS for certain air pollutants, and induces states to adopt and submit to EPA for approval a plan providing for implementation, [12 ELR 10028] maintenance, and enforcement of the standards within the state.¹⁰ Under the 1970 Act, the SIP was required to include, in addition to stationary source emission limitations, "such other measures as may be necessary … including land use and transportation controls."¹¹ Section 110(a)(2)(G) required the SIP to provide, "to the extent necessary and practicable, for periodic inspection and testing of motor vehicles to enforce compliance with applicable emission standards."¹² However, I/M programs were greeted with little enthusiasm by many states. In the first proposed SIPs, most states failed to include any transportation control measures or I/M programs. EPA disapproved the SIPs lacking necessary mobile source control strategies and developed "substitute" plans.¹³ While the EPA plans included measures designed to reduce vehicle miles traveled, they stressed I/M and retrofit programs designed to reduce vehicle tailpipe emissions.¹⁴ Significantly, these plans required the states to establish the control programs by enacting necessary laws, creating administrative agencies, and developing enforcement strategies.

EPA supported its position that the states could be compelled to implement its "substitute" plans on the basis of Congress' express delegation to the states of primary responsibility for achieving and maintaining the NAAQS.¹⁵ It found support in the enforcement provisions of § 113(a), which direct EPA to take enforcement action against "any person," defined in § 302(e) to include a state, municipality, or political subdivisions of a state,¹⁶ found in violation of "any requirement of an applicable implementation plan."¹⁷ Failure to implement the "substitute" plans would subject the state to the sanctions available under § 113, including administrative compliance orders, injunctions, and civil and criminal penalties.¹⁸

Constitutional Issues

Several states challenged the EPA plans and their enforceability, arguing that they were not authorized by the Act and violated state sovereignty protected by the Tenth Amendment. Of four courts of appeals to hear the challenges, only one accepted EPA's position, but its heavy reliance on a decision subsequently overruled by the Supreme Court cast doubt on its reliability. In Pennsylvania v. Environmental Protection Agency,¹⁹ the Third Circuit determined from the legislative history of the Clean Air Act that Congress intended the states to implement EPA's "substitute" plans and that § 113(a)(1) provided the statutory authority for EPA to enforce this requirement against the states if they declined. Furthermore, EPA had not exceeded the limits of the commerce power nor unconstitutionally infringed on the state's sovereignty. The court relied on Maryland v. Wirtz²⁰ for the principle that the

constitutionality of federal regulation of state activities is subject to the same analysis as that of private activities; viz. the determinative factor is simply whether they have an impact on interstate commerce.²¹

Thus, since it is undisputed that air pollution has an impact on interstate commece, and that the federal government may regulate private vehicle owners, it may regulate the state.

The Ninth Circuit reached the opposite conclusion in Brown v. Environmental Protection Agency.²² In that case the court read § 113(a) to allow EPA to enforce a SIP should the state fail to do so but not to vest power in EPA to compel the states to enforce EPA promulgated plans:

Tesely put, the Act … permits sanctions against a state that pollutes the air, but not against a state that chooses not to govern polluters as the Administrator directs.²³

The court's view of § 113 was strongly influenced by the serious constitutional issues raised by the states. In dicta it stated that the commerce power does not authorize rules requiring a state to enforce federal regulations.²⁴

Using similar reasoning, the Fourth Circuit in Maryland v. Environmental Protection Agency,²⁵ found inadequate statutory support for EPA's construction of § 113(a)(1). EPA had argued that direct federal enforcement of its regulations — the "substitute" plans — would be "inefficient and impractical." But the court viewed the regulations requiring the state to enact legislation as "astonishing." While it doubted their constitutionality, it preferred to limit its ruling to a construction of the statute since it found

nothing in the statute which authorizes the Administrator to direct the state to supply "legal authority," or "statutory proposals" or the like for the "assurances" offered to the Administrator.The statute in plain words authorizes the Administrator to "prepare … regulations … for a State;" it does not empower him to direct a state to [12 ELR 10029] enact its own statutes and regulations as prescribed by the Administrator.²⁶

However, the court suggested that other "forms of pressure" on the states might be appropriate and consistent with the Tenth Amendment.

The District of Columbia Circuit met EPA halway. In District of Columbia v. Train,²⁷ the court agreed with the Ninth Circuit that EPA may not require states to adopt and enforce I/M or retrofit programs. The court suggested, however, that EPA can prohibit states from registering vehicles which do not comply with the federal standards. In addition, it found that both the Act and the Constitution allow EPA to bring § 113 actions against the states as "violators" for failing to manage their indirect sources — the highways and their components — to encourage less vehicle use where needed to achieve congressionally mandated clean air goals.

The judgments of the courts of appeals in Brown, District of Columbia, and Maryland were vacated and remanded by the Supreme Court in Environmental Protection Agency v. Brown.²⁸ The Court's decision was based on EPA's determination not to seek review of the Ninth Circuit's invalidation of certain regulations promulgated as part of the plans, and its admission that the remaining regulations, including the requirement that the states promulgate regulations, were invalid unless modified. Thus, the Court never reached the question of the constitutionality of forced state implementation of EPA-promulgated plans.

In another case examining the limits on forced state implementation of mobile source controls under the Clean Air Act, Friends of the Earth v. Carey,²⁹ the Second Circuit found no constitutional violations to federal court enforcement of a state-promulgated plan. The court distinguished Brown, in which EPA sought to compel a state to implement and enforce a plan promulgated by EPA without the state's participation or consent. However, in Friends of the Earth, the state had made its own essential policy decisions and voluntarily promulgated its own plan. Thus, enforcement of the plan did not interfere with integral state functions or decision-making powers within the mandate of National League of Cities v. Usery.³⁰

I/M Under the 1977 Amendments

New Statutory Sanctions

These judicial defeats, combined with Congress' retreat on tailpipe emissions standards,³¹ essentially derailed the control of vehicle pollutants prior to the 1977 Amendments. However, while the 1977 Amendments made no changes to EPA's enforcement authority challenged in the early cases, they gave EPA new "persuasive" tools to assure state adoption and implementation of adequate I/M programs without directly ordering state adoption of regulations.

The new Part D³² requires each state with non-attainment areas to submit to EPA revised SIPs which provide for attainment of the NAAQS by December 31, 1982.³³ If a state demonstrates that it is unable to meet the 1982 attainment deadlines for ozone or carbon monoxide, EPA may grant an extension until December 31, 1987.³⁴ However, the state is then subject to restrictions on construction of stationary sources,³⁵ and must establish a specific schedule for the implementation of an I/M program.³⁶ Section 110(a)(2)(I) imposes an automatic ban on the construction or modification of major stationary sources in any non-attainment area after June 30, 1979 until a revised SIP meeting the requirements of Part D has been approved or promulgated by EPA.³⁷ Until the SIP is actually implemented in the non-attainment area the construction and mnodification ban continues.³⁸

In addition, § 113(a)(5) authorizes EPA to issue a compliance order prohibiting such construction or modification if the source will contribute to violations of the NAAQS or the state is not complying with Part D,³⁹ i.e., not implementing its I/M program. Further, under § 113(a)(2) EPA may carry out the plan itself if the state fails to enforce its I/M program.⁴⁰ However, such failure also renders the state "in violation of a requirement of an applicable plan" and therefore subject to direct enforcement actions under § 113(a)(1), including administrative orders and civil penalties.⁴¹

The 1977 Amendments also added § 176, which prohibits EPA from approving any projects or awarding any grants under the Clean Air Act or sewage treatment grants under the Federal Water Pollution Control Act, and requires the Department of Transportation (DOT) to withhold federal highway funds, where the state has failed to establish an I/M program or to meet the other requirements of § 110 and Part D.⁴²

Post Amendment Cases

Possessed of this array of new enforcement tools, EPA abandoned its policy of requiring the states to pass statutes to implement I/M programs. Instead it turned to the § 113(a)(5) and § 176 sanctions. These new sanctions were soon upheld against a constitutional challenge.

[12 ELR 10030]

When California failed to submit an approvable SIP, EPA opted, for the first time, to enforce a new source construction ban and to impose funding sanctions rather than seek civil penalties.⁴³ The Pacific Legal Foundation and several state legislators challenged EPA's authority to levy these penalties under the Tenth Amendment. In Pacific Legal Foundation v. Costle,⁴⁴ the Ninth Circuit rejected plaintiffs' arguments that since California had failed to submit a revised SIP, EPA's only option was to promulgate a federal SIP, and thereby obviate the need for the construction ban. Further, EPA's imposition of funding sanctions did not unconstitutionally coerce the state legislature to act.

However, there still remained substantial uncertainty surrounding § 113(a) sanctions. In United States v. Ohio Department of Auto Safety,⁴⁵ the state argued that § 113(a)(1) does not authorize enforcement actions against a state which fails to enforce the requirements of an EPA-promulgated I/M program; EPA is limited to enforcing the plan itself under § 113(a)(2). The Sixth Circuit ruled, however, that Ohio is subject to § 113(a)(1) sanctions for failing to deny registration to vehicles which have not passed I/M emissions tests. The court found no constitutional violation because the regulation which EPA sought to enforce did not require the state to adopt legislation or affirmatively change its procedures for registering vehicles. The state was simply required to deny use of state-owned facilities to polluters. Such a requirement will not "impair the integrity of the State or its ability to function in a federal system."⁴⁶ Thus, while EPA may not require a state to enact laws or promulgate regulations to implement an I/M program, it still may require the state to comply with the federal program.

The Delaware Valley Decision

Although Pennsylvania was one of the first states to include an I/M provision in its SIP, it has yet to implement its I/M program, the Third Circuit's ruling in Pennsylvania v. Environmental Protection Agency⁴⁷ notwithstanding. In 1973 the Commonwealth submitted for EPA approval a SIP containing a transportation control plan and I/M program for the Philadelphia and Pittsburgh areas. After disapproving portions of the SIP, EPA promulgated a revised SIP for Pennsylvania which required the state to implement its I/M program by May 1, 1975, and to set up bikeways, bus and carpool lanes, and an automobile retrofit program. When the state failed to meet the deadline, the Delaware Valley Citizens' Council for Clean Air (DVCCCA), on June 29, 1976, instituted a citizens suit to compel the state, two of its agencies, and EPA to enforce the SIP. EPA then issued notices of violation and eventually filed suit under § 113 of the Act to force the state to implement the I/M requirements. As a result of these actions, the Commonwealth entered into a consent decree with both the DVCCCA and the United States agreeing to implement an I/M program for the Philadelphia and Pittsburgh areas by May 1, 1981, later postponed until May 1, 1982.

The Pennsylvania legislature, however, was of a different mind, and enacted legislation (H.B. 456) prohibiting the expenditure of state funds for implementation of the I/M program. Before EPA carried through with any other administrative actions, the DVCCCA challenged the constitutionality of H.B. 456 and returned to federal district court to enforce the terms of the consent decree.

Addressing the constitutionality of H.B. 456, the district court, in Delaware Valley Citizens' Council for Clean Air v. Pennsylvania,⁴⁸ acknowledged the general rule that a state law which interferes with a federal judicial decree is unconstitutional. However, the court noted, under the Tenth Amendment as construed in National League of Cities Congress may not impose upon states burdens which impair essential attributes of their sovereignty, and the federal courts are under similar constraints when shaping equitable decrees. Thus, it felt compelled to conclude that it lacked the power to reverse the decision of the Pennsylvania legislature not to expend state funds on I/M. For similar reasons the court concluded that H.B. 456 did not unconstitutionally conflict with the Clean Air Act. As established by a majority of the circuits in the pre-1977 I/M cases and confirmed by the Supreme Court in National League of Cities, if a state is doggedly determined not to spend its monies in a certain manner, even a manner required by federal law, then the Tenth Amendment authorizes it to ignore the contrary wishes of the federal government.

Nevertheless, the court found that it could, without overstepping the bounds of the Tenth Amendment, hold the Commonwealth in civil contempt for failing to comply with the consent decree. Not only had Pennsylvania voluntarily entered into the decree, but it retained both the financial ability and personnel to comply with it. The fact that the defendants before the court — the Commonwealth and two of its agencies — have been hamstrung by a branch of the government not before the court — the legislature — did not insulate the defendants from the consequences of their failure to comply.

[12 ELR 10031]

Yet simply declaring defendants in contempt would be an idle gesture at best if unaccompanied by a remedy that was both meaningful and constitutional. Such a remedy had conveniently been prescribed in the legislative history. Senator Muskie, speaking on the floor of the Senate, had expressly suggested "cut-offs of highway funds" as an alternative to the coercive approaches used before.⁴⁹ Such a remedy, the court concluded, would be consistent both with constitutional requirements as well as the spirit of the Act: a loss in highway funds discourages vehicle use and encourages use of mass transit.Therefore, the court enjoined the United States DOT from approving any transportation grants to the state for purposes other than safety, mass transit, or transportation improvement projects designed to improve air quality.

Discussion

The construction ban and funding restrictions added in the 1977 Amendments appear to provide an escape from the constitutional defects found by the Ninth, Fourth, and D.C. Circuits in EPA's policy of requiring that states enact legislation and promulgate regulations to implement federally promulgated I/M programs. Indeed, constitutional challenges were summarily rejected in Pacific Legal Foundation v. Costle, and the Fourth Circuit had pointedly endorsed such "forms of pressure" in Maryland v. Environmental Protection Agency.⁵⁰ In fact, such sanctions were upheld in South Dakota v. Adams,⁵¹ where the Eighth Circuit found it within the statutory authority of the Secretary of Transportation under Title I of the Highway Beautification Act to withhold a state's federal highway funds where the state has failed to control outdoor advertising in proximity to federal highways.⁵² The court in Delaware Valley thus appeared to show a proper respect for the limits placed on its equitable powers by the Tenth Amendment and "our federalist system," by imposing the sanctions available under the Clean Air Act.

This is not to say, however, that the ruling is without problems. For example, the Clean Air Act does not clearly authorize the withholding of highway funds for non-enforcement of an I/M program. Section 176 provides that funds may be withheld for failure to submit an adequate SIP but in Delaware Valley it was undisputed that Pennsylvania's SIP was adequate; indeed, it had received EPA approval. The district court nimbly sidestepped this problem by suggesting that the Pennsylvania legislature's withholding of funds was "tantamount to no SIP revision having ever been submitted."⁵³ Perhaps the court reasoned sub silentio that the difficult posture of the case combined with its broad powers in equity to authorize some stretching of the statutory language.

Such stretching was evident in another respect.While the Act directs EPA and DOT to whthhold federal monies from states without approved SIPs, it does not explicitly give similar powers to the courts. The fact that the agencies have a mandatory duty to withhold funds might even be read to suggest that such sanctions were not intended to be yielded by jjudges as a discretionary tool to enforce consent decrees. Moreover, DOT was not a named party to the case, even though the "United States" was. It is conceivable that the order compelling DOT to withhold funds was jurisdictionally flawed. Thus, while the court was correct in noting that the purpose of the remedy was consistent with the spirit of part D of the Act, the remedy had a rather shaky legal foundation.

Future of I/M Programs

In the midst of the Clean Air Act reauthorization debate several bills have been introduced to do away with the I/M provisions, or at least to make I/M optional in non-attainment states.⁵⁴ In the meantime, however, EPA is retaining its policy to require state implementation of I/M programs. It is also still applying sanctions against California and Kentucky for failing to submit approvable SIPs.

While most states are continuing to meet their implementation schedules required by Part D, the I/M program is under serious attack in several states. In addition to the Pennsylvania legislature's efforts to half implementation, the Maryland legislature is considering legislation to repeal the state's proposed I/M program scheduled to begin on January 1, 1983.⁵⁵ In addition, 12 other states have missed their deadlines or are delaying programs. As EPA undergoes reductions in funding and personnel, states may be hoping for a delay in EPA's use of § 113 enforcement provisions or imposition of sanctions. However, states concerned about the cutoff of federal highway funds should not count on such delays. As Delaware Valley demonstrated, the federal courts may impose similar sanctions in response to citizens suits.

1. 42 U.S.C. §§ 7401-7642, ELR STAT. & REG. 42201.

2. See COUNCIL ON ENVIRONMENTAL QUALITY, ELEVENTH ANNUAL REPORT, at 146 (1980).

3. Clean Air Act, subchapter II, Emissions Standards for Moving Sources, 42 U.S.C. §§ 7521-7551, ELR STAT. & REG. 42240.

4. See Clean Air Act § 108(f)(1), 42 U.S.C. § 7408(f)(1), ELR STAT. & REG. 42211, listing suggested transportation control measures.

5. An inspection and maintenance program in defined as a program to reduce emissions from in-use vehicles through identifying vehicles that need emission-control related maintenance and requiring that such maintenance be performed. 40 C.F.R. § 52.2038(a)(1).

6. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 687.

7. 45 Fed. Reg. 81746 and 81752 (Dec. 12, 1980).

8. 627 F.2d 917, 10 ELR 20719 (9th Cir. 1980).

9. 12 ELR 20191 (E.D. Pa. Jan. 22, 1982).

10. Clean Air Act § 110(a)(1), 42 U.S.C. § 7410(a)(1), ELR STAT. & REG. 42212.

11. Clean Air Act § 110(a)(2)(B), 42 U.S.C. § 7410(a)(2)(B), ELR STAT. & REG. 42212.

12. 42 U.S.C. § 7410(a)(2)(G), ELR STAT. & REG. 42213.

13. EPA had initially granted the states extensions beyond the statutory deadlines both for submitting the transportation control portions of their plans and for meeting the attainment deadlines. This action was successfully challenged in Natural Resources Defense Council, Inc. v. EPA, 475 F.2d 968, 3 ELR 20155 (D.C. Cir. 1973) (per curiam) (ordering EPA to rescind the extensions and to promulgate substitute plans for the states which failed to submit approvable plans).

14. The plans regulated parking, parking fees, carpool programs, preferential bus/carpool lanes, bikeways, gas supply restrictions, vehicle inspection and maintenance programs, and automobile retrofit programs.

15. Clean Air Act § 110, 42 U.S.C. § 7410, ELR STAT. & REG. 42212.

16. 42 U.S.C. § 7602(e), ELR STAT. & REG. 42255.

17. 42 U.S.C. § 7413(a), ELR STAT. & REG. 42220.

18. 42 U.S.C. § 7413, ELR STAT. & REG. 42220.

19. 500 F.2d 246, 5 ELR 20618 (3d Cir. 1974).

20. 392 U.S. 183 (1968).

21. Pennsylvania v. EPA, 500 F.2d at 261, 5 ELR at 20625.

22. 521 F.2d 827, 5 ELR 20546 (9th Cir. 1975), vacated and remanded sub nom., EPA v. Brown, 431 U.S. 99, 7 ELR 20375 (1977).

23. 521 F.2d at 832 5 ELR at 20547.

24. On remand from the Supreme Court, see note 28, infra, and accompanying text, the Ninth Circuit in Brown v. EPA, 566 F.2d 665, 8 ELR 20140 (1977), again ruled that the Act, as amended, does not authorize EPA to treat the state as a polluter subject to § 113 sanctions.

25. 530 F.2d 215, 5 ELR 20651 (4th Cir. 1975), vacated sub nom., EPA v. Brown, 431 U.S. 99, 7 ELR 20375 (1977).

26. 530 F.2d at 227, 5 ELR at 20656.

27. 521 F.2d 971, 6 ELR 20007 (D.C. Cir. 1975), vacated sub nom., EPA v. Brown, 431 U.S. 99, 7 ELR 20375 (1977), remanded, 567 F.2d 1091, 8 ELR 20036 (1977).

28. 431 U.S. 99, 7 ELR 20375 (1977).

29. 552 F.2d 25, 7 ELR 20177 (2d Cir. 1977), cert. denied, 434 U.S. 902 (1977).

30. 426 U.S. 833 (1976).

31. See Comment, The Clean Air Act Amendments of 1977: Expedient Revisions, Noteworthy New Provisions, 7 ELR 10182 (1977).

32. Clean Air Act §§ 171-178, 42 U.S.C. §§ 7501-7508, ELR STAT. & REG. 42238.

33. Clean Air Act § 172(a), 42 U.S.C. § 7502(a), ELR STAT. & REG. 42238.

34. Clean Air Act § 172(a)(2), 42 U.S.C. § 7502(a)(2), ELR STAT. & REG. 42238.

35. Clean Air Act § 173, 42 U.S.C. § 7503, ELR STAT. & REG. 42239.

36. Clean Air Act § 172(b)(11)(B), 42 U.S.C. § 7502(b)(11)(B), ELR STAT. & REG. 42238.

37. 42 U.S.C. § 7410(a)(2)(I), ELR STAT. & REG. 42213.

38. Clean Air Act § 173(4), 42 U.S.C. § 7503(4), ELR STAT. & REG. 42239.

39. 42 U.S.C. § 7413(a)(5), ELR STAT. & REG. 42221.

40. 42 U.S.C. § 7413(a)(2), ELR STAT. & REG. 42220.

41. 42 U.S.C. § 7413(a)(1), ELR STAT. & REG. 42220. See text accompanying notes 45-46, infra.

42. 42 U.S.C. § 7506, ELR STAT. & REG. 42239.

43. 45 Fed. Reg. 81746 (Dec. 12, 1980).

44. 627 F.2d 917, 10 ELR 20719 (9th Cir. 1980). See also Mountain States Legal Foundation v. Costle, 10 ELR 20769 (10th Cir. 1980) (public interest law firm lacks standing to challenge EPA's imposition of sanctions against Colorado for failing to implement I/M program); Connecticut Fund for the Environment, Inc. v. EPA, No. 81-4025 (2d Cir. Feb. 1, 1982) (EPA may not lift a ban on construction of new sources in areas without fully approved SIPs).

45. 635 F.2d 1195, 11 ELR 20026 (6th Cir. 1980).

46. 635 F.2d at 1205, 11 ELR at 20031. The D.C. Circuit made a similar suggestion in District of Columbia v. Train, 521 F.2d 971, 6 ELR 20007 (D.C. Cir. 1975).

47. 500 F.2d 246, 5 ELR 20618 (3d Cir. 1974).

48. 12 ELR 20191 (E.D. Pa. Jan. 22, 1982). This was the fifth ruling by the district court in the last year involving Pennsylvania's I/M program. Early last year, the court denied motions to intervene filed by Pennsylvania state legislators, 11 ELR 20952 (E.D. Pa. Mar. 25, 1981), denied defendants' motion to postpone implementation of the I/M program until January 1983, 11 ELR 20954 (E.D. Pa. May 20, 1981), approved the I/M program subject to a May 1, 1982 implementation date and monthly audits of inspection facilities, 11 ELR 20954 (E.D. Pa. June 16, 1981), and denied defendants' motion to stay implementation of the I/M program pending appeal of the May 20 ruling, 11 ELR 20956 (E.D. Pa. Aug. 20, 1981). The latter three rulings were recently affirmed by the Third Circuit in Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, No. 81-2303, 12 ELR 20289 (3d Cir. Mar. 1, 1982). Some of the pleadings in these cases are summarized in ELR Pending Litigation, ELR Doc. No. [823] (April 1982).

49. 123 CONG. REC. S9168 (1977).

50. 530 F.2d at 227, 5 ELR at 20656.

51. 587 F.2d 915, 9 ELR 20071 (8th Cir. 1978).

52. A footnote in National League of Cities also left open the possibility that funds could constitutionally be withheld from the states for failure to carry out federal environmental programs, 426 U.S. at 852 n.17.

53. 12 ELR at 20196.

54. See H.R. 5252, 97th Cong. 1st Sess. (1981), H.R. 4952, 97th Cong. 1st Sess. (1981).

55. See Washington Post, Feb. 14, 1982, at B2-3.