Pacific Legal Foundation v. Costle

No. Civil S-79-925 LKK (E.D. Cal. March 18, 1981)

In a challenge to the Environmental Protection Agency's (EPA's) response to California's failure to meet Clean Air Act deadlines, the court holds that it lacks jurisdiction under § 307 of the Clean Air Act to review EPA's imposition of a new source construction ban and withdrawal of federal funds, and denies summary judgment to plaintiffs on the claim that EPA failed in its duty to draft a new state implementation plan (SIP) for California. In response to California's failure to adequately revise its SIP, EPA imposed a ban on construction of new sources and cut federal funds to the state.Plaintiffs claimed that (1) the construction ban was outside EPA's authority, (2) EPA's use of threats to coerce state action was unconstitutional, and (3) EPA failed in its duty to promulgate a new SIP for California. The court first holds that it does not have jurisdiction to hear plaintiffs' first claim. Defendants argue, and the court agrees, that the construction ban was in essence a SIP revision and thus sole jurisdiction for review lies with the court of appeals under § 307 of the Act. Alternatively, the court rules that the construction ban was either a regulation or a final action and thus only reviewable by the court of appeals under § 307. The court then rules that plaintiffs' second claim is moot because the challenged threat has been realized. As a final agency action, the withdrawal of federal funds can only be challenged in the court of appeals. However, the district court rules that it has jurisdiction to hear the third claim because § 110 of the Act imposes a duty on EPA to promulgate SIPs for delinquent states and § 304 of the Act gives district courts jurisdiction to hear claims that EPA failed to carry out a duty. The court concludes that EPA has a duty under § 110 to act in response to a state's failure to revise its SIP. However, the court rules that EPA complied with § 110 by promulgating a revision of the SIP through imposition of a construction ban.

Counsel for Plaintiffs
John Findley, Anthony Caso, Ronald Zumbrun
Pacific Legal Foundation
455 Capitol Mall, Suite 600, Sacramento CA 95814
(916) 444-0154

Counsel for Defendants
David Strommberg
Office of Regional Counsel
Environmental Protection Agency, 215 Fremont St., San Francisco CA 94105
(415) 928-0478

[13 ELR 20745]

KARLTON, J.:

Order

Once again, by virtue of this case, I must confront the Clean Air Act, 42 U.S.C. § 7401 et seq;¹ it is no less Byzantine or intricate than at my last consideration. The defendants have moved to dismiss the complaint on the grounds that this Court does not have jurisdiction over the subject matter. Plaintiffs have moved for partial summary judgment, seeking to have the Court determine that the Environmental Protection Agency (EPA) Administrator has a mandatory duty to promulgate a State Implementation Plan (SIP) for those states that did not have a plan in effect by July 1, 1979. To some extent I have previously considered many of the jurisdictional issues which lie at the heart of these motions in my Order of March 10, 1980, denying the plaintiffs' motions for a preliminary injunction. I now must address those and other issues in light of recent administrative acts and developments in the case law.

I. Background

As in my previous Order I will set out the complex background of this case. I do so again since it is impossible to discuss the issues before me without first setting forth a summary of the undisputed facts.² The Clean Air Act, 42 U.S.C. § 7401, et seq. was enacted by Congress in 1963. (see Public Law 88-206, December 17, 1963). In 1970 the Clean Air Act Amendments were enacted, significantly altering the existing statute and creating the structure under which the desired level of air quality throughout the country was to be achieved. Under these 1970 amendments the Administrator of the EPA was vested with the primary responsibility of establishing national ambient air quality standards (NAAQs) for the pollutants identified in the Act. 42 U.S.C. § 7409.³ Although the EPA was given the responsibility to establish the standards, the initial responsibility for meeting them was placed upon the states. To meet their responsibility the states were required to submit to the EPA Administrator SIPs providing for the implementation, maintenance, and enforcement of the air quality standards. 42 U.S.C. § 7410(a)(1). The 1970 Amendments also provided that in the event a state failed to submit a SIP which met the statutory requirements the EPA Administrator was to prepare and publish proposed regulations setting forth an implementation plan or portion thereof. 42 U.S.C. § 7410(c)(1). The amendments also established a July 1, 1975, deadline for compliance with the provisions of the Act.⁴ Nonetheless, by 1976 it had become apparent that the deadlines previously established by Congress were not being met by the states. In response to this realization Congress again passed amendments to the Act in 1977. adding Part D to Title I of the Act. 42 U.S.C. §§ 7501-7508.

The provisions constituting Part D were made applicable only to those areas failing to meet the national ambient air quality standards established by the EPA — so called "nonattainment areas." These 1977 amendments extended the deadline for achieving the national ambient air quality standards in these nonattainment areas to December 31, 1982,⁵ provided that the states in which said nonattainment areas were located revised their SIPs to include the provisions designated by the EPA as necessary to ensure that the newly established deadlines with respect to pollutant levels would be met. 42 U.S.C. § 7502(b). Pursuant to these amendments the states in question were required to submit their revised SIPs by January 1, 1979, and it was anticipated that the EPA would approve plans meeting the requirements by July 1, 1979. See Pub. L. 95-95 § 129(c) reprinted in notes following 42 U.S.C.A. § 7502; 42 U.S.C. §§ 7410(a)(2), 7410(c).

Among other provisions, the revised SIPs for states with nonattainment areas were required to contain a construction and modification ban on all "major stationary"⁶ sources if the emissions from such sources would contribute to the area's failure to meet national ambient air quality standards. An exception to the ban was permitted if at the time a construction permit application was filed the SIP met the requirements of Part D. See 42 U.S.C. § 7410(a)(2)(I). Specifically, the amended Act required that the revised SIP contain a similar provision limiting construction on major stationary sources unless the SIP was being "carried out . . . in accordance with the requirements of this part." 42 U.S.C. § 7503(4); see 42 U.S.C. § 7502(b)(6).

Ultimately the motions before me seek to parse the statutory consequences of the failure of a state to submit a revised SIP containing the required provisions. Whether the Act imposes a mandatory duty on the EPA Administrator to perform certain acts, the sequence of those acts, and the required timetable for their performance are all raised by the motions of the parties. Plaintiffs argue that upon a state's failure to submit the required plan the Administrator must promulgate regulations setting forth a federal implementation plan for the state in question. 42 U.S.C. § 7410(c)(1). Defendants suggest that EPA has a number of possible responses among which the Administrator may choose, including the withholding of certain financial assistance provided to the states by the federal government.42 U.S.C. §§ 7506(a), 7616(b).

In keeping with the fate of many of the deadlines established by Congress in the Clean Air Act, on July 1, 1979, most states had failed to submit revised SIPs to the EPA and had not incorporated construction limitations into their SIPs. In immediate response to the states' failure the Administrator promulgated an "interpretative" rule purporting to recognize that as of July 2, 1979, a construction moratorium was, as a matter of law, in effect in those states which had not submitted the required revisions to their SIPs. Under the rule EPA asserted that, "To the extent any particular state plan is alleged to allow construction after July 1 . . . to that extent the plan is disapproved and [the statute] and this interpretive rule impose the statutory restriction upon the state plan as a matter of law." 44 Fed. Reg. 38472 (1979). Finally, the Administrator deemed that this interpretive rule was "nationally applicable and is based on determinations of nationwide scope and effect." 44 Fed. Reg. 38473 (1979).

California was one of many states failing to submit a revised SIP by July 1, 1979. Moreover, California had not enacted legislation [13 ELR 20746] providing for an Inspection and Maintenance (I/M) Program for motor vehicles. The Act required an I/M Program as a precondition to extending the deadline for meeting certain ambient air quality standards to December 31, 1987. 42 U.S.C. § 7502(b)(11). In September 1979, apparently in response to questions posed by California state legislators, an EPA administrator sent a telegram to state legislators informing them that the construction moratorium imposed by the interpretive rule of July 2, 1979, could not be terminated until California promulgated the required revisions to its SIP, including an I/M Program and the revised SIP had been approved by the EPA.⁷ The telegram also indicated that unless Calfiornia made progress towards this end EPA would initiate proceedings to withhold various federal financial grants to the state. In the months following this telegram the state legislature has been unable to enact the required auto inspection and maintenance program. As a result, on December 12, 1980, the EPA Administrator published his final decision to withhold federal funds from California pursuant to 42 U.S.C. §§ 7506, 7616. 45 Fed. Reg. 81746 (1980).

The history of this lawsuit begins on December 3, 1979, when plaintiffs, a non-profit public interest law firm and a number of California state legislators, filed this action. The plaintiffs subsequently amended their complaint on December 21, 1979. In essence, the amended complaint alleges that when the State of California failed to submit a revised SIP by the January 1, 1979, statutory deadline, the EPA Administrator had a mandatory duty to promulgate those revisions for the state. In this regard plaintiffs seek an order requiring the EPA Administrator to promulgate a revised SIP for California pursuant to 42 U.S.C. § 7410(c)(1). In addition the plaintiffs allege that the Administrator has engaged in a number of "unlawful actions" including the imposition of an area wide ban on the construction of modification of major stationary sources. The plaintiffs claim that the Administrator was, in effect, sanctioning California unlawfully and in doing so was acting beyond his statutory authority. Moreover, the plaintiffs allege that both the construction ban and the threatened (now promulgated) withholding of federal funds comprise unconstitutional attempts to coerce the adoption of legislation by the state in violation of Article IV, section 4, the Fifth Amendment, and the Tenth Amendment of the Constitution.

The plaintiffs' complaint alleges that this Court's jurisdiction is predicated upon the "citizen suit" provision of the Clean Air Act. 42 U.S.C. § 7604(a).⁸ In addition, plaintiffs allege jurisdiction based upon the existence of a federal question (28 U.S.C. § 1331), the mandamus statute (28 U.S.C. § 1361), and the Declaratory Relief Act (28 U.S.C. §§ 2201, 2202).

The parties have previously been before me on the plaintiffs' motion for injunctive relief to bar the EPA from imposing the construction ban, threatening to withhold federal funds from California, or imposing any other sanctions for California's failure to submit a revised SIP as required. I denied the plaintiffs' motion on the grounds that I did not have jurisdiction to hear their challenge to the promulgation of the construction ban and that the plaintiffs had virtually no chance of succeeding on the merits of their challenge to the threatened funding cutoff. That decision was subsequently affirmed by the Ninth Circuit Court of Appeals (Pacific Legal Foundation v. Costle, __ F.2d __, No. 80-4108 Slip. Op. at 4997 [10 ELR 20719] (9th Cir. August 12, 1980)) and plaintiffs' writ of certiorari filed with the United States Supreme Court regarding that decision was recently denied (Pacific Legal Foundation v. Costle, __ U.S. __, No. 80-828, (February 23, 1981)). It is against this long and twisted factual background that I will now address the motions presently before me.

II. Defendants' Motion To Dismiss

The EPA has moved to dismiss the plaintiffs' complaint, alleging as a basis for this motion that this Court lacks jurisdiction over the subject matter in question. The defendants assert that the Clean Air Act provides exclusive jurisdiction over the plaintiffs' claims in the Court of Appeals. 42 U.S.C. § 7607.⁹ The question of whether this Court has jurisdiction to review the construction ban, the funding limitation, or the alleged mandatory duty of the EPA Administrator to promulgate a SIP for California are all raised by the motion of the defendants. For the sake of clarity I will discuss these sub-issues seriatim.

A. The Construction Limitation.

Plaintiffs challenge the construction limitation allegedly imposed by the EPA Administrator upon the State of California under the July 2, 1979, interpretive rule promulgated by the EPA. 44 Fed. Reg. 38471-73 (1979). Asserting various bases, the defendants argue that the validity of the construction limitation is reviewable only in the appropriate Court of Appeals pursuant to 42 U.S.C. § 7607(b)(1).

First, the defendants argue that the construction ban was inserted as a matter of law into the plan of each state which had failed to submit a revised SIP (44 Fed. Reg. 38472), and as such the ban is an "action in approving or promulgating any implementation plan under section 7410" as that phrase is used in § 7607(b)(1).¹⁰ Thus, defendants conclude, a petition for review of such an action is available only in the appropriate Court of Appeals. For reasons that are set forth at length in my discussion of plaintiffs' Motion for Summary Judgment, I agree with defendants' [13 ELR 20747] position. Nonetheless, other reasons are equally persuasive on this issue of jurisdiction.

The plaintiffs, as noted above, argue that because the EPA took the position at some point that it was the statute, not the interpretive rule, which imposed the constructive [sic] ban this Court has jurisdiction to hear their challenge based upon its federal question jurisdiction. 28 U.S.C. § 1331. The defendants, however, assert that it cannot be disputed that a construction moratorium went into effect in California on July 2, 1979, and that whatever the EPA Administrator did to impose that limitation he at least purported to do it by means of the July 2, 1979, interpretive rule.¹¹ Although the plaintiffs contest the effect of the interpretive rule they do take the position that the construction ban was not imposed by the Clean Air Act but rather by some action of the EPA Administrator.¹² Moreover, plaintiffs do not deny that the interpretive rule is the means by which defendants attempted to impose the construction limitation. In reality, plaintiffs assert that the interpretive rule cannot lawfully have the effect which the defendants purport it to have, that of imposing the limitation on the State of California. As such it is the lawfulness of the regulation which the plaintiffs wish to have reviewed. This review may be obtained only in the Court of Appeals pursuant to 42 U.S.C. § 7607(b).¹³ Yet another reason suggests that this Court is without jurisdiction to review the imposition of the construction ban.

The defendants argue that even if the interpretive rule was not a properly promulgated regulation nor a revised SIP or portion thereof under 42 U.S.C. § 7410, it was certainly ". . . any other final action of the Administrator under subchapter I of this chapter, "review of which may be obtained only in the appropriate Court of Appeals pursuant to 42 U.S.C. § 7607(b)(1). In analyzing this argument it is important to again observe that the plaintiffs have consistently taken the position that a construction ban is in place and that through his action the Administrator was the source of the ban.¹⁴ Given the plaintiffs' position, defendants' "final action" argument appears dispositive.

The issue presented above is whether the interpretive rule promulgated by the EPA Administrator was "any other final action of the administrator" within the meaning of § 7607. Particularly helpful to the resolution of this issue is the recent Supreme Court decision in Harrison v. PPG Industries, Inc., __ U.S. __, 64 L. Ed. 2d 525 [10 ELR 20353] (1980). In that case the Supreme Court defined the scope of the Courts of Appeals jurisdiction under the "any other final action" provision of 42 U.S.C. § 7607. In Harrison an EPA Regional Administrator had notified a corporation by letter that its boilers were subject to "new source" standards thus affirming a previous EPA determination. It was undisputed that the Administrator's actions were final within the meaning of the Administrative Procedure Act. The sole issue presented was the scope of the term "any other final action" contained in § 7607. In this context the Supreme Court held that "the phrase 'any other final action,' . . . must be construed to mean exactly what it says, namely, any other final action." 64 L. Ed. 2d at 535 (emphasis in the original).¹⁵ In the present case the construction ban is undisputedly in effect. Plaintiffs assert the ban was promulgated by action of the EPA Administrator and is to remain in effect until the EPA approves California's revision of its SIP. It is difficult to imagine how the EPA could more emphatically state "its last word on the matter." Harison v. PPG Industries, Inc., 64 L. Ed. 2d at 534; Western Oil & Gas v. United States E.P.A., 633 F.2d 803, 807 [10 ELR 20985] (9th Cir. 1980).¹⁶ Because the imposition of the construction ban is a final action of the EPA Administrator it is reviewable only in the appropriate Court of Appeals pursuant to 42 U.S.C. § 7607.

For the reasons noted above, I conclude that whether the construction limitation is viewed as a revision of the state SIP, a validly promulgated regulation, or as a final action of the Administrator, this Court is without jurisdiction to review its imposition.

B. The Withholding of Federal Funds.

Plaintiffs also allege that the EPA had threatened to impose sanctions, specifically the withholding of federal funds pursuant to 42 U.S.C. §§ 7506, 7616, if the state legislature did not pass an I/M plan as part of its revised SIP. Plaintiffs have alleged that this threat is in and of itself coercive conduct that violates state sovereignty and various constitutional provisions. Because at the time plaintiffs moved for a preliminary injunction in this matter the EPA had not acted on these threats to withhold funds it was uncontested that § 7607(b) did not require the plaintiffs to seek review in the Courts of Appeals. I also found that the claim with regard to the threatened sanctions did not raise any issue of a mandatory duty on the part of the Administrator and thus it was clear that the Citizen Suit provision of the Act did not apply. Based upon those circumstances and findings I reached the preliminary conclusion that federal question jurisdiction, pursuant to 28 U.S.C. § 1331, existed in this Court to review the constitutionality of the coercive nature of the threat to cut off federal funds. (See March 10, 1980, Order at p. 16). However, actions taken by the Administrator subsequent to my previous Order have rendered the issue moot.¹⁷

On December 12, 1980, the EPA Administrator published notice in the Federal Register by which he announced EPA's final decision to impose limitations on federal funding assistance for California because of the state's failure to submit a revised SIP meeting the requirements of the Act. 45 Fed. Reg. 81746 (1980). Thus, the threat of withholding federal funds no longer exists — it is no longer a threat but an accomplished fact. Notwithstanding exceptions absent in this case, the Courts are not empowered to decide cases in which the conduct complained of has been terminated and the issue thus rendered moot. See California v. San Pablo & T.R.R., 149 U.S. 308 (1893). To the extent the plaintiffs may wish to continue to contest the constitutionality of the withholding of federal funds, jurisdiction over that claim does not lie in this Court. In announcing the decision to impose funding restrictions on California the Administrator deemed the decision a final agency action within the meaning of 42 U.S.C. § 7607, reviewable only by the appropriate Court of Appeals. 45 Fed. Reg. 81746-52 (1980. This legal conclusion appears to be correct. See Harrison v. PPG Industries, supra. Because this decison to withhold federal funding from California is a final action by the Administrator which is locally applicable, jurisdiction lies not in this Court but in the Ninth Circuit Court of Appeals. 42 U.S.C. § 7607(b)(1).

C. The EPA Administrator's Duty to Act.

The Clean Air Act does provide one instance of jurisdiction in the district court, 42 U.S.C. § 7604(a)(2). That section, referred to as the Citizens Suit provision, provides that the district court shall have jurisdiction over civil actions brought against the Administrator [13 ELR 20748] for failure to perform a non-discretionary act or duty. Plaintiffs allege that the Administrator has a mandatory duty to promulgate a SIP for any state which has not submitted a revised SIP by July 1, 1979, and thus this Court has jurisdiction over his failure to do so.

In their Motion to Dismiss the defendants argue that the true purpose of the plaintiffs' lawsuit is to obtain review of the Administrator's decision to impose a construction limitation upon California, review of which is available only in the appropriate Court of Appeals. Defendants assert that insofar as the amended complaint poses the issue of the Administrator's duty to act, it does so only in an attempt to subvert Congressional intent and "slip" into this Court under the Citizen Suit provision. Clearly, the plaintiffs' complaint does allege that the Administrator has failed to perform a nondiscretionary duty under the Clean Air Act in not promulgating a revised SIP for California. See Plaintiffs' First Amended Complaint, at pp. 1, 7-10. It is well settled that on a motion to dismiss the court must take the allegations of the complaint as true and view them in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Cruz v. Beto, 405 U.S. 319, 322 (1972). Under these standards I must assume that the plaintiffs' purpose as alleged is their true purpose and reject defendants' contention that the purpose asserted is a mere subterfuge.

The defendants also argue that 42 U.S.C. § 7410(c)(1) does not impose a mandatory duty of any kind upon the Administrator, the existence of such a duty being a mandatory prerequisite for this Court to exercise jurisdiction under the Citizen Suit provision.¹⁸ This argument is based in part upon the assertion that the Administrator has no duty to act at least until he determines that the state SIPs are not in accordance with the requirements of the Act and that determination has not been made in this case. A straightforward reading of the statute renders the defendants' argument unpersuasive. The provision in issue, 42 U.S.C. § 7410(c)(1) provides as follows:

(c)(1) The Administrator shall, after consideration of any State hearing record, promptly prepare and publish proposed regulations setting forth an implementation plan, or portion thereof, for a State if —

(A) the State fails to submit an implementation plan which meets the requirements of this section,

(B) the plan, or any portion thereof, submitted for such State is determined by the Administrator not to be in accordance with the requirements of this section, or

(C) the State fails, within 60 days after notification by the Administrator or such longer period as he may prescribe, to revise an implementation plan as required pursuant to a provision of its plan referred to in subsection (a)(2)(H) of this section.

If such State held no public hearing associated with respect to such plan (or revision thereof), the Administrator shall provide opportunity for such hearing within such State on any proposed regulation. The Administrator shall, within six months after the date required for submission of such plan (or revision thereof), promulgate any such regulations unless, prior to such promulgation, such State has adopted and submitted a plan (or revision) which the Administrator determines to be in accordance with the requirements of this section. Notwithstanding the preceding sentence, any portion of a plan relating to any measure described in the first sentence of section 7421 of this title (relating to consultation) or the consultation process required under such section 7421 shall not be required to be promulgated before the date eight months after such date required for submission.

The instructive language of the statute provides that the Administrator "shall . . . publish proposed regulations setting forth an implementation plan, or portion thereof . . ." if a state fails to submit a revised SIP meeting the statutory requirements. In particular the word "shall" indicates a mandatory duty on the part of the Administrator. Moreover, the defendants themselves recognize that although Congress intended the states to take the lead in meeting air pollution standards, it was necessary that the Administrator have the authority to promulgate a federal SIP if the states failed to meet their responsibility in order to ensure that the goals of the Clean Air Act were attained. (Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment at p. 11). Finally, in considering the 1977 Clean Air Act Amendments the House of Respesentatives made it clear that although state participation obtained voluntarily was preferable, if a state failed or refused to adopt an I/M Program the Administrator would be required to promulgate one. H.R. REP. NO. 95-924, 95th Congress, 1st Session at p. 290 (1975).

For the reasons noted above I conclude that the Administrator does have a nondiscretionary duty to act in response to a state's failure to submit a revised SIP as required by the Act. Based upon this conclusion I find that I have jurisdiction pursuant to 42 U.S.C. § 7604 to hear plaintiffs' claim alleging the Administrator's failure to perform that duty. As counsel for the defendants observed at oral argument, this is not the end of my inquiry. Remaining before me are the issues of when this duty to act arises, how may the Administrator discharge the duty and whether the Administrator has performed the act which satisfies the legal requirements of § 7410(c). These are the issues presented by the plaintiffs' Motion for Partial Summary Judgment which I will discuss below.

III.Plaintiffs' Motion for Partial Summary Judgment

The plaintiffs' argument in regard to this issue may be summarized quite simply. They assert that the Clean Air Act required participating states in which nonattainment areas were located to submit a revised SIP meeting the requirements of the Act by January 1, 1979. Pub. Law No. 95-95, § 129(c); in note following 42 U.S.C. § 7502. If a state failed to do so, plaintiffs argue, it became the EPA Administrator's mandatory duty pursuant to 42 U.S.C. § 7410(c)(1) to promptly prepare and promulgate a SIP or portion thereof for the state and in no event to do so later than July 1, 1979. To echo plaintiffs' counsel at oral argument, shall means shall and six months means six months. Defendants' response is that § 7410(c)(1) cannot be read in isolation from the other provisions of the Clean Air Act. They argue that it was the express intent of Congress that the states and local governments bear primary responsibility for the prevention and control of air pollution (42 U.S.C. § 7401(a)(3)) and that the federal government provide financial assistance and leadership in order to reach these goals, 42 U.S.C. § 7401(a)(4). Moreover, the defendants argue, consideration of the relevant legislative history establishes that in enacting the 1977 Clean Air Act Amendments Congress intended to provide the Administrator with additional tools to be utilized in obtaining voluntary state compliance rather than taking the drastic action of promulgating a SIP for the state.

The initial question posed by these arguments is whether it is appropriate for me to look at the legislative history in question. The statute at issue hereprovides in relevant part that the Administrator shall promulgate regulations setting forth an implementation plan or portion thereof if the State has failed to submit a SIP meeting the requirements of the Act. 42 U.S.C. § 7410(c)(1). I have, on more than one occasion, commented on the extreme difficulty of reading the Clean Air Act as a coherent whole.¹⁹ The [13 ELR 20749] Act abounds in references and cross-references and is the product of substantial amendment and re-amendment without a serious consideration of redrafting the entire statute. Nonetheless, although it is somewhat difficult to do, the statute may be pieced together so as to require that the Administrator issue the revised SIP by July 1, 1979. See 42 U.S.C. §§ 7410(a)(2), 7410(c); Pub. Law No. 95-95, § 129(c) as amended by Pub. Law No. 95-190, § 14(b)(4), note under text of 42 U.S.C. § 7502.²⁰ Ordinarily the courts may assume that Congress meant what it has said and to that extent when a statute is clear and unambiguous and an interpretation in accordance with its terms would not lead to an absurd or impracticable result, the words employed by Congress may be taken as a final expression of its intent. Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, n.29 [8 ELR 20513] (1978); Church of Scientology v. United States Department of Justice, 612 F.2d 417, 421 (9th Cir. 1979). It is particularly true, however, that when confronted with complex environmental legislation the legislative history may provide additional meaning to words which seem clear on initial examination. Apparently there is no inflexible rule of law which forbids the use of legislative history in such a case. Train v. Colorado Public Interest Research Group, 426 U.S. 1, 9-10 [6 ELR 20549] (1976). Moreover, even if I were to find that the six month deadline was itself clear, it would not follow that the provision was free from ambiguity. While I find that shall means shall and six months means six months, it is not at all clear what it is that the Administrator must do in six months. The provision requires the promulgation of regulations "setting forth an implementation plan or portion thereof." 42 U.S.C. § 7410(c)(1). Thus the question of whether the Administrator must publish a comprehensive SIP is not readily answered by a mere reading of the plain words of the statute. Accordingly, I find the statute's dense and almost impenetrable structure and the language of the very provisions in question permit (if they do not command) resort to extrinsic aids in determining Congressional intent.

The legislative history reveals that among the stated "main purposes" of the 1977 Clean Air Act Amendments was a Congressional desire to provide for "a greater role and greater assistance for State and local governments in the administration of the Clean Air Act." House Report N. 294, 1977 U.S. CODE AND CONG. AND ADMIN. NEWS at p. 1079.This recognition of the preference for state involvement in meeting the goals of the Clean Air Act was witnessed by Congress' "increasing commitment to give States the necessary tools and authorities to meet the requirements of the Act." House Clarifying Statement, 1977 U.S. CODE AND CONG. AND ADMIN. NEWS at p. 1079. This recognition of the preference for state involvement in meeting the goals of the Clean Air Act was witnessed by Congress' "increasing commitment to give States the necessary tools and authorities to meet the requirements of the Act." House Clarifying Statement, 1977 U.S. CODE AND CONG. AND ADMIN. NEWS at p. 1570. See also 42 U.S.C. § 7401(a)(3), 7401(b)(3) (expressing Congressional intent that the States play the primary role in achieving air quality standards even prior to the enactment of the 1977 Amendments). In discussing the version of the 1977 Amendments eventually adopted by the Senate, the House of Representatives clearly recognized the legal difficulties encountered by the EPA when it had previously attempted to impose pollution control programs upon the states.²¹ 1977 U.S. CODE AND CONG. AND ADMIN. NEWS at 1365-67. At the same time the House recognized that were a State to fail or refuse to adopt an inspection and maintenace program the Administrator would be required to promulgate such a plan for the state pursuant to 42 U.S.C. § 7410. Id. at 1369. Nonetheless, the House Committee, in reference to the Court decisions restricting EPA's power to force programs on the states, noted that, "this is a delicate area of federal-state relations. Clearly a careful balance is required as a matter of wise legislative policy, if not as a matter of constitutional requirement." Id. at 1367. The House Report concludes that in order to achieve this delicate balance the approach adopted in the Amendments was meant to "involve the least possible intrustion into State affairs consistent with the primary task of protecting the public health." Id. at 1367. In specific reference to the adoption of inspection and maintenance programs by the states, the House observed that the most preferable course would be to have the state implement and enforce the program. Id. at 1369. In the event this course was not successful, the House Report suggested that other options included the granting or withholding of funds in order to induce state compliance. The third option listed in the House Report appears as follows, "if feasible, providing for Federal implementation and enforcement of the program." Id. at 1369 (emphasis added). Other options included seeking injunctive relief against the state or empowering local government to implement and enforce the plan. Id. at 1369. Of course, the withholding of federal financial assistance to the states in order to gain compliance was adopted by Congress in the 1977 Amendments. 42 U.S.C. §§ 7506(a), 7616(b).

A fair reading of the legislative history of the 1977 Clean Air Act Amendments suggests that Congress had a strong preference that the states play the primary role in adopting, implementing and enforcing programs designed to prevent and control air pollution. Congressional sensitivity to the possible conflicts between the federal government and the states in the area of pollution control had obviously been stimulated by the numerous court decisions restricting EPA's authority to force specific programs upon the states.²² Congress was clearly interested in developing alternative means by which to encourage the states to assume responsibility in attaining the goals of the Clean Air Act. Unfortunately, for the resolution of the matter before me, Congress did not speak directly to the issue of when these alternatives were to be exercised and when the Administrator would have the mandatory duty to promulgate a revised SIP for the State. Thus, although the legislative history provides guidance as to what Congress hoped to achieve, it is not determinative of the issues before me. In such a case it is not inappropriate for the court to look to the responsible administrative agency's interpretation of the statute.

The EPA's interpretation of the Act, the 1977 Amendments and the applicable legislative history, is that Congress' intent was that the EPA be provided with a number of alternative means by which to respond to a state failing to submit the required revised SIP. 45 Fed. Reg. 81751 (1980). Certainly the courts are not required to "stand aside and rubber stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Pacific Coast Medical Enterprises v. Harris, 633 F.2d 123, 131 (9th Cir. 1980). However, EPA's interpretation cannot be said to be inconsistent with a specific statutory mandate or demonstrably inconsistent with the underlying congressional policy. Accordingly, the agency's construction of the law which it is charged to administer will be given important, albeit not controlling, significance. Batterton V. Francis, 432 U.S. 416, 424 (1977).²³ [13 ELR 20750] In the present case the actions taken by the Administrator in responding to California's failure to submit the revised SIP as required may be interpreted so as to comply both with the defendant agency's interpretation of the Act and with that of the plaintiff.

As the plaintiffs point out, one of the primary concerns of Congress in enacting the Clean Air Act was the need for expeditious action to protect the citizenry from the serious health hazards engendered by pollution. Because of this concern Congress required that if a state failed to submit a revised SIP meeting the requirements of the Act within six months of the date those revised plans were due, the Administrator was to act. Yet as noted, the action that he was to undertake was to prepare and publish proposed regulations setting forth an implementation plan, or portion thereof, for the State in question 42 U.S.C. § 7410(c)(1) (emphasis added). The EPA Administrator satisfied this stautory requirement when, on July 2, 1979, he published the interpretive rule imposing the restriction on construction of major stationary sources in nonattainment area upon the SIPs of each state failing to submit the revised SIP required by the Act. I recognize that the Administrator asserted that he was doing no more than what the statute required in any event. Nonetheless, it appears to me that whether the Administrator was correct as a matter of law, the effect of this action was, as plaintiffs maintain, the imposition of the construction ban. Indeed, plaintiffs are on the horns of a dilemma as to this matter. Plaintiffs have maintained throughout the litigation that it was the Administrator's interpretive rule which imposed the construction ban. If they were now to retreat and assert that the statute imposed the ban they would be faced with almost the identical standing problems as to the construction ban that the plaintiffs were unable to overcome in Boating Industry Associations v. Marshall, 601 F.2d 1376 (9th Cir. 1979). Moreover, it must be remembered that the Administrator in the Supplementary Information Statement accompanying the interpretive rule explains that he is inserting the construction ban into each affected state's SIP. 44 Fed. Reg. 38472 (1979). Thus, the Administrator asserts that he has promulgated a portion of a SIP. Although plaintiffs argue that he cannot do so since he failed to follow the APA procedure for the rule, as to that claim this Court it without jurisdiction. See Part II, A, above. The timing of the interpretive rule imposing the construction ban is consistent with the above interpretation. The Administrator issued the rule by July 1, 1979 (effective July 2, 1979) — the date by which the Administrator was to have rejected or approved any revised SIP submitted by the states and the date by which he was to act in the event the states failed to do so pursuant to 42 U.S.C. § 7410(c)(1). Moreover, in promulgating the interpretive rule imposing the construction ban the Administrator asserted he was doing so pursuant to the authority granted him by 42 U.S.C. §§ 7410, 7502,²⁴ 7601. 44 Fed. Reg. 38473 (1979). This interpretation is also not inconsistent with the specific statutory mandate or the expressed intent of Congress; therefore, it too will be given appropriate deference.Accordingly, I find that one permissible response of the Administrator to a state's failure to file a conforming SIP is for the Administrator to promulgate a revision to a portion of the SIP incorporating a construction ban and that in this case the Administrator did just that. Even were I to assume arguendo that I had jurisdiction under the Citizen Suit Provision, 42 U.S.C. § 7604, over a claim that the mandatory duty was performed by means of an unlawful action, it is unquestionably true that the Administrator attempted to carry out his duty by means of a "final action" as that phrase is used in 42 U.S.C. § 7607. As such the Administrator's action is reviewable only in the appropriate Court of Appeals. (See II, A, above). Therefore, I express no opinion as to whether the Administrator conformed to the APA requirements in promulgating the construction ban and what effect, if any, a failure to so conform would have.

Finally, having performed the mandatory duty to act in response to states failing to submit revised SIPs, the Administrator was then free to utilize the alternative tools provided him by Congress in the 1977 Clean Air Act Amendments in order to encourage states to implement and enforce their own SIP's including inspection and maintenance programs. As noted earlier, the Administrator has recently taken the final action to exercise one of these alternative means of obtaining state cooperation when he announced that certain federal financial assistance would be withheld from California due to the state's failure to submit a revised SIP meeting the requirements of the Act. The authority of the Administrator to exercise this option rather than immediately commence the promulgation of an entire SIP for the state is wholly in keeping with Congressional intent as expressed in the legislative history to the 1977 Amendments discussed above.

The Clean Air Act is an exceedingly complex and reticulated statute. I believe that the conclusions I have reached above as to the meaning and requirements of the Act are consistent with both the language of the particular provisions and the express intent of Congress. I realize, however, thatthe provisions I have construed may be reasonably interpreted in a different fashion.²⁵ Nonetheless, another reason persuades me to adhere to the interpretation of the statute I have adopted. As noted above, the Ninth Circuit Court of Appeals had occasion to consider the present case in affirming my previous order denying the plaintiffs' motion for a preliminary injunction. In affirming that order the Court of Appeals considered the actions of the Administrator currently at issue here. The Court first noted that plaintiffs had taken the position that the EPA was to promulgate a revised SIP by July 1, 1979, for each state which had failed to submit an acceptable plan by that time. The Court then observed that on July 1, 1979 — the last day for EPA approval of state submitted revised SIPs — the EPA imposed the construction ban upon all states with inadequate SIPs. Finally the Court stated that, "The 1977 Amendments give the EPA another means of inducing the states to do their part. The EPA may disapprove projects and cut off grants under the various air pollution statutes if a state has neither submitted a timely, satisfactory SIP nor made 'reasonable efforts' toward that end. 42 U.S.C. § 7506." Pacific Legal Foundation v. Costle, __ F.2d __, No. 80-4108, Slip. Op. at p. 4993 [10 ELR 20719] (9th Cir. August 12, 1980). Thus, the Ninth Circuit Court of Appeals has expressed in this case the opinion that the EPA Administrator has at his disposal a number of alternative means by which to respond to states failing to submit revised SIPs as required by the Act. It may be correct that those observations by the Court of Appeals was dicta in that decision and thus does not bind me as to those issues in this case.²⁶ Nonetheless, even if it was dicta, the fact that it is appellate dicta in this very case makes it especially persuasive here. Moreover, in interpreting a complex statute such as the Clean Air Act a court would be foolish indeed not to accept any instructive aid available to it.

For the reasons stated above, it is hereby ordered that:

1. The defendants' motion to dismiss is granted save and except as it relates to the issue of the EPA Administrator's nondiscretionary duty to promulgate a revised SIP, or portion thereof, by July 1, 1979, for those states failing to submit an acceptable plan by that date;

2. The plaintiffs' motion for summary judgment is denied.

IT IS SO ORDERED.

1. For the sake of clarity, provisions of the Clean Air Act will be cited in this opinion as they appear in Title 42 of the United States Code.

2. In essence, neither party has raised a material issue of fact relative to the issues presented by the various motions. The facts recited here are essentially the history of the statute and the State of California and EPA's efforts to comply with its mandate. Although a similar summary appeared in my previous Order of March 10, 1980, the complexity of the Clean Air Act simply makes it impossible to discuss these issues without first reciting the statutory framework.

3. Two distinct national ambient air quality standards are established by 42 U.S.C. § 7409(b)(1) & (2). The primary standards established by that provision are to be based upon criteria found requisite for the protection of the public health. The secondary standards are to be set with the goal of protecting the public welfare.

4. This deadline established by the Act applied only to the achievement of the primary ambient air quality standards.

5. In the case of certain difficult ozone and carbon monoxide pollutants, if the state could demonstrate to the EPA Administrator that attainment of the primary national ambient air quality standards by December 31, 1982, was not possible despite the implementation of all reasonably available measures the 1977 Amendments allowed for an extension of the deadline for meeting those standards to December 31, 1987.42 U.S.C. § 7502(a)(2). It is this extension of time which California is seeking from the EPA.

6. The term "major stationary source" is defined at 42 U.S.C. § 7491(g)(7).

7. See Telegram from EPA Assistant Administrator David G. Hawkins dated September 7, 1979; Plaintiffs' First Amended Complaint, Exhibit 3.

8. 42 U.S.C. § 7604(a) provides as follows:

Authority to bring civil action; jurisdiction

(a) Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf —

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation,

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, or

(3) against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to be in violation of any condition of such permit.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be.

9. 42 U.S.C. § 7607(b) provides as follows:

Judicial review

(b)(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 7412 of this title, any standard of performance or requirement under section 7411 of this title, any standard under section 7521 of this title (other than a standard required to be prescribed under section 7521(b)(1) of this title), any determination under section 7521(b)(5) of this title, any control or prohibition under section 7545 of this title, any standard under section 7571 of this title, any rule issued under section 7413, 7419, or 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 7410 of this title or section 7411(d) of this title, any order under section 7411(j) of this title, under section 7412(c) of this title, under section 7413(d) of this title, under section 7419 of this title, or under section 7420 of this title, or his action under section 119(c)(2)(A), (B), or (C) (as in effect before August 7, 1977) or under regulations thereunder, or any other final action of the Administrator under this chapter (including any denial or disapproval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise.

10. The theory that the EPA's promulgation of the interpretive rule of July 2, 1979, which imposed the construction ban may be interpreted as the promulgating of a SIP or portion thereof under 42 U.S.C. § 7410(c)(1), will be explored in depth in the portion of this opinion discussing the plaintiffs' motion for summary judgment.

11. The EPA's position that the construction limitation was imposed by means of the interpretive rule is consistent with the language of the rule itself. The rule provides in pertinent part as follows, "To the extent any particular state plan is alleged to allow construction after July 1 . . . to that extent the plan is disapproved and sections 110(a)(2)(I) and 173(4) and this interpretive rule impose the statutory restriction upon the state plan as a matter of law." 44 Fed. Reg. 38472 (1979) (emphasis added).

12. The question of whether plaintiffs wish to amend their complaint further so as to allege that the construction ban was imposed by the Clean Air Act itself and not by the act of the Administrator has been put to the plaintiffs many times, the most recent of which was at the oral argument on these motions. The plaintiffs have consistently maintained that the construction ban was imposed by an act of the Administrator and that they do not wish to amend to allege otherwise. I take the plaintiffs at their word.

13. Since the Administrator made a finding that the interpretive rule was of nationwide scope and effect, it would appear that the District of Columbia United States Circuit Court of Appeals would be the court with jurisdiction to review the rule in question. See 42 U.S.C. § 7607(b)(1); see also 44 Fed. Reg. 38471-73 (1979).

14. See Infra, fn. 12.

15. The Supreme Court also observed that nothing appearing in the legislative history to the proposed amendment of § 7607(b)(1) supported the conclusion that Congress did not intend to substantially expand the jurisdiction of the Courts of Appeals through the use of the language "any other final action." Harrison v. PPG Industries, Inc., U.S. , 64 L. Ed. 2d at 536-37.

16. To the extent that the plaintiffs may be seen as arguing that the construction ban is imposed merely by a case-by-case denial of major stationary source permit applications the result would appear to be the same. Under Harrison v. PPG Industries, Inc., supra, the action at issue was an EPA determination that waste heat boilers utilized by the corporation at a particular location were subject to the new source standards. The court found this to be a final action which was locally or regionally applicable. The rejection of major stationary source construction permits would likewise appear to be final action under 42 U.S.C. § 7607(b).

17. The court has the duty to consider its jurisdiction over the subject matter at all stages of the proceedings. Mansfield, C. & L.N.R. Co. v. Swan, 111 U.S. 379 (1884).

18. It is true, however, that a not unpersuasive argument can be made that all that is required for the District Court to have jurisdiction over a lawsuit pursuant to 42 U.S.C. § 7604 is an allegation of the Administrator's failure to perform a nondiscretionary duty or act under the Act. See 42 U.S.C. § 7604(a)(2). That is when the issue of jurisdiction is tendered by a motion to dismiss, the court must treat the allegations as true. Of course, if subsequently the defendants prove under a motion for summary judgment that the allegations are false then plaintiffs cannot prevail.

19. If find some solace in discoverng that I am not the first judge to have experienced such difficulty in penetrating the Clean Air Act and its innumerable amendments. The same Act has caused the Supreme Court to conclude that the EPA's interpretation of certain provisions was, "'correct,' to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the 'correct' one." Train v. Natural Resources Defense Council, 421 U.S. 60, 87 [5 ELR 20264] (1975).

20. The defendants are in agreement with the plaintiffs that Congress in enacting the amendments envisioned a scheme by which the states would submit their revised SIPs by January 1, 1979, and the EPA Administrator would act upon these submitted plans by July 1, 1979. (See Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment at p. 3).

21. Several states filed lawsuits challenging EPA's authority under the Clean Air Act and the Constitution to require the states to adopt specific transportation control plans. Almost without exception the Courts agreed with the states and held that the EPA had no such authority. See Brown v. EPA, 521 F.2d 827 [5 ELR 20546] (9th Cir. 1975) ("Brown I"), vacated and remanded EPA v. Brown, 431 U.S. 99 [7 ELR 20375] (1977), on remand, Brown v. EPA, 566 F.2d 665 [8 ELR 20140] (1977) ("Brown II") State of Maryland v. EPA, 530 F.2d 215 [5 ELR 20651] (4th Cir. 1975), vacated and remanded sub nom. EPA v. Brown, 431 U.S. 99 [7 ELR 20375] (1977); District of Columbia v. Train, 521 F.2d 971 [6 ELR 20007] (D.C. Cir. 1975), vacated and remanded sub nom. EPA v. Brown, 431 U.S. 99 [7 ELR 20375] (1977); on remand District of Columbia v. Costle, 567 F.2d 1091 [8 ELR 20036] (D.C. Cir. 1977). But see Commonwealth of Pennsylvania v. EPA, 500 F.2d 246 [5 ELR 20618] (2d Cir. 1974).

22. See infra, fn. 21.

23. In determining the meaning of complex environmental legislation the interpretation of the agency charged with administering the statute has often been given considerable deference by the courts. For example, in Train v. Natural Resources Defense Council, the Supreme Court concluded that EPA's interpretation of sections of the Clean Air Act were "correct" insofar as any interpretation of that complex statute could be deemed "correct" and then stated, "Given this conclusion, as well as the facts that the Agency is charged with Administration of the Act, and that there has undoubtedly been reliance upon its interpretation by the States and other parties affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the Agency." 421 U.S. at 87. See also, E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 134 [7 ELR 20191] (1977); American Frozen Food Institute v. Train, 539 F.2d 107, 131 [6 ELR 20485] (D.C. Cir. 1976); Gonzales v. Costle, 463 F. Supp. 335, 341 (N.D. Cal. 1978).

24. 42 U.S.C. § 7502(b) provides in pertinent part that each state in which nonattainment areas are located shall adopt a construction limitation into their revised SIP or have that limitation placed in their SIP by the EPA Administrator pursuant to 42 U.S.C. § 7410(c).

25. See infra, footnotes 19 and 23.

26. In general, a decision of law in a case, once made, becomes the "law of the case" which the Court must normally apply to the same issues in the subsequent proceedings in that case. That decision of law should ordinarily not be changed absent clear error in the original ruling or a change in the relevant circumstances. United States v. Estrada-Lucas, __ F.2d __, No. 78-2618, Slip. Op. at 1826 (9th Cir. Jan. 30, 1980); see generally 1B MOORE'S FEDERAL PRACTICE ¶0.404[4] (2d ed. 1980). As noted above, the doctrine of the "law of the case" applies when the court enunciates a rule of law. In the present case it may be argued that the Court of Appeals, in affirming the denial of plaintiffs' motion for a preliminary injunction, had before it only plaintiffs' challenge to the construction limitation and the threatened cutoff of federal funds and thus any other observations made by the Court of Appeals was not necessary to its decision and thus is not binding on this Court. Nonetheless, the Court of Appeals did discuss the plaintiffs' contention that the EPA Administrator should have promulgated a federal SIP for California by July 1, 1979. Thus, the Court of Appeals' observation that the Administrator was given "another means of inducing the states to do their part" by the 1977 Amendments is, at the very least, instructive as to the issue before me now.