McCarthy v. Thomas

No. CIV 85-344 TUC WDB (D. Ariz. August 10, 1987)

The court rules that the Environmental Protection Agency (EPA) has discretion under Clean Air Act § 176(a) to decline to initiate proceedings to terminate federal highway funds in the event of a state's failure to submit an adequate state implementation plan (SIP) if EPA finds that the state is making reasonable efforts to submit an adequate plan, and that when EPA rejects a SIP as inadequate, it is required under § 110(c) to begin preparation of a federal plan, even if the state is also working on a plan. The court first holds, on the basis of the legislative history, that it is appropriate to defer to EPA's and the Department of Transportation's joint memorandum interpreting § 176(a)'s requirements for termination of federal funds, which concluded that a state must both fail to submit an adequate plan and fail to make reasonable efforts to do so for funding to be terminated. The court holds that it does not have subject matter jurisdiction under § 304 of the Clean Air Act to review EPA's discretionary determination that Arizona is making reasonable efforts, nor does it have jurisdiction under the Mandamus Act to review a discretionary agency action. The court holds, however, that EPA is not relieved of its duty under § 110(c) to promulgate its own attainment plan within six months of rejecting the state plan, even if Arizona may soon adopt an adequate SIP.

[The complaint and plaintiff's summary judgment motion are digested at ELR PEND. LIT. 65859 and 65944.]

Counsel for Plaintiffs
David S. Baron
Arizona Center for Law in the Public Interest
3208 E. Fort Lowell, Suite 106, Tucson AZ 85716
(602) 327-9547

Counsel for Defendants
David W. Zugschwerdt
Land and Natural Resources Division
Environmental Defense Section, P.O. Box 23986, Washington DC 20026-3986
(202) 633-2686

James R. Redpath, Ass't Attorney General
Environmental Protection Unit
Office of the Attorney General, 1275 W. Washington, Phoenix AZ 85007
(602) 255-4266

[17 ELR 21214]

Browning, J.:

Order

This matter is presently before the Court on the plaintiffs' motion for partial summary judgment, in which the plaintiffs request that this Court order the Environmental Protection Agency [EPA] to initiate procedures under 42 U.S.C. § 7506(a) leading to the termination of federal highway funds to Maricopa and Pima counties. In their motion, the plaintiffs also request that this Court order the EPA pursuant to 42 U.S.C. § 7410(c), to promulgate within six months a federal implementation plan for attainment of national air quality standards within the State of Arizona.

This matter is also before the Court on the federal defendants' cross motion for summary judgment, in which the federal defendants contend that this Court lacks subject matter jurisdiction over the plaintiffs' request for a termination of federal highway funds or, alternatively, that the circumstances presently surrounding the State of Arizona's effort to meet national clean air standards do not support such a termination. In their cross motion, the federal defendants also contend that the circumstances surrounding the State of Arizona's efforts to meet national clean air standards do not support the promulgation of a federal implementation plan, at this time. Finally, this matter is before the Court on the Secretary of Transportation's motion for judgment on the pleadings, in which the Secretary contends that she is not a proper defendant in this action her duty to terminate federal highway funds does not arise until she is notified by the EPA Administrator to begin that termination.

Because the relief requested by the plaintiffs depends upon two separate statutory schemes, the Court will address the plaintiffs' request for a termination of highway funds separately from the plaintiffs' request for the promulgation of a federal implementation plan.

The plaintiffs' request for a cutoff of federal highway funds is founded on provisions contained in 42 U.S.C. § 7506(a). Under that statute, the EPA Administrator and the Secretary of Transportation shall not approve any projects or award any grants under the Clean Air Act or under Title 23,¹ to air quality regions:

(1) in which any national primary ambient air quality standard has not been attained,

(2) where transportation control measures are necessary for the attainment of such standard, and

(3) where the Administrator finds . . . that the Governor has not submitted an implementation plan that considers each of the elements required by . . . this title or that reasonable efforts toward submitting such an implementation plan are not being made . . . .

It is not disputed among the parties that the first two statutory conditions requiring a termination of federal highway funds apply to the State of Arizona. Additionally, the parties are agreed that the first half of the third condition occurred on October 23, 1986, when the EPA's final determination that the State of Arizona had failed to submit an implementation plan that would demonstrate timely attainment of national air quality standards for carbon monoxide went into effect. See 51 Fed. Reg. 33746 (1986) (A copy of the Federal Register notice is contained in Plaintiffs' Appendix A, at A-1 through A-5.) The parties vigorously dispute, however, whether the EPA's later determination that the State of Arizona is making reasonable effort to submit an adequate implementation plan, see Plaintiff's Appendix A, at A-93 through A-95, letter from David P. Howekamp to David S. Baron (January 14, 1987), should [17 ELR 21215] have any effect on the EPA's duty to initiate fund termination procedures.

The plaintiffs contend that the conjunction "or" that precedes the statutory language "that reasonable efforts . . . are not being made" indicates Congress' intent that if the EPA finds either that a state has submitted an inadequate plan or that reasonable efforts to do so are not being made, the termination of federal highway funds is required. New Mexico Envtl. Improvement Div. v. Thomas, 789 F.2d 825, 833 [16 ELR 20647] (10th Cir. 1986). The federal defendants contend, however, that the only logical construction of the statutory language would allow the EPA to refrain from initiating funding termination procedures if the Administrator found that a state was making reasonable efforts toward submitting a plan, even though a previously submitted plan was rejected as being inadequate.

As a general rule, principles of statutory construction suggest that terms connected by the disjunctive "or" should be given separate meanings. Garcia v. United States, 469 U.S. 70, 73 (1984). When, however, a statute is ambiguous on its face or in practice, a court may refer to the statute's legislative history and to the interpretation of the statute that has been followed by the administrative agency charged with enforcing the statute in order to determine Congress' intent in enacting the legislation. Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349, 1353 (9th Cir. 1985).

The ambiguity inherent in Congress' identification of those circumstances that would require the termination of federal highway funds under 42 U.S.C. § 7506(a) is readily discernible from the manner in which the factual situation presently before this Court differs from the facts that were before the Tenth Circuit in New Mexico Envtl. Improvement Div., 789 F.2d at 825. In that case, the EPA made two findings: first, that the State of New Mexico had submitted an inadequate plan, and second, that New Mexico had not demonstrated reasonable efforts toward submitting a plan. Either finding alone, or both together, thus required the termination of federal highway funds. Id. at 833. In this case, however, the EPA has made different findings. As in New Mexico Envtl. Improvement Div., the EPA has found that the State of Arizona has submitted an inadequate plan which under the statute, would require the termination of funds. But the EPA has also found that the State of Arizona is making reasonable efforts toward submitting a plan which under the statute, would forestall the termination of funds. In order to determine the comparative weight that should be given to separate findings that apparently would require different results, this Court is obliged to refer to the legislative history of the statute and to the manner in which the statute has heretofore been enforced.

The plaintiffs contend that the legislative history of 42 U.S.C. § 7506(a) does not allow the EPA to delay the termination of highway funds upon rejection of a state's implementation plan by finding that the state is making reasonable efforts to submit a plan. In support of that contention, the plaintiffs rely on the fact that the 1977 amendments to the Clean Air Act were enacted, in part, "to provide more effective surveillance and enforcement tools for States and the Administrator to bring existing stationary and mobile sources into compliance [with the Clean Air Act] and to assure that they remain in compliance." See H.R. Rep. No. 95-294, 95th Cong., 1st Sess., 2 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 1077, 1079; see also Connecticut Fund for the Env't v. E.P.A., 672 F.2d 998, 1000-02 [12 ELR 20306] (2nd Cir.), cert. denied sub nom., Manchester Envtl. Coalition v. E.P.A., 459 U.S. 1035 (1982) (indicating that the 1977 amendments to the Clean Air Act that allowed states an extension of time in which to attain national air quality standards were enacted in exchange for the submission of more aggressive state implementation plans). Because, nearly ten years after passage of the 1977 amendments to the Clean Air Act, Arizona is still without an adequate implementation plan, the plaintiffs contend that to construe the statute to allow further delay in the imposition of sanctions designed to ensure the promulgation of adequate state implementation plans would undermine Congress' intent in enacting those sanctions.

The federal defendants, however, urge that it would be illogical to construe the statute to require the EPA to impose sanctions despite its finding that the State of Arizona is making reasonable efforts to submit an adequate implementation plan. In support of their position, the federal defendants rely on the floor debates in the Senate that preceded the inclusion of the "reasonable efforts" language into the statute. See 123 Cong. Rec. 18,475-77 (1977) (quoted in part in the federal defendants' memorandum in support of their cross motion for summary judgment, at 11-12 and in the federal defendants' reply memorandum in support of their cross motion for summary judgment, at 5-6). Apparently, at the time the statute was enacted, environmentalists had not been able to determine how to compensate for the effect that ice fog in Alaska had on preventing emissions from motor vehicles from dissipating into the atmosphere. Accordingly, the Senator from Alaska suggested an amendment preventing the termination of highway funds for those regions "that are in the process of submitting, or have made best efforts to submit a plan, but have not yet done so for some legitimate reason." 123 Cong. Rec. 18, 475 (1977) (statement of Sen. Gravel) (quoted in the federal defendants' memorandum in support of their cross motion for summary judgment, at 11, n.9).

Relying on indications of legislative intent contained in the Senate debates, the federal defendants suggest that requiring the termination of highway funds despite the EPA's finding that a state was making reasonable efforts takes away the incentive for the state to make those efforts. Additionally, the federal defendants suggest that if the EPA finds that a state is making reasonable efforts toward submitting a plan, the fact that the state has proposed an inadequate plan should not be taken as any more than an indication of the technological or social problems that make it difficult to propose an adequate plan.

Although the Senate debates cited by the federal defendants provide a useful tool to this Court in construing 42 U.S.C. § 7506(a), courts must guard against interpreting statutes by placing undue weight on statements made in floor debates. Garcia, 469 U.S. at 76 & n.3. The additional factor, however, of the manner in which the EPA has previously interpreted its obligation to initiate highway funding termination procedures under that statute persuades this Court that the EPA has the discretion to decline to initiate termination proceedings based upon its determination that the State of Arizona is making reasonable efforts to submit an adequate plan.

On April 10, 1980, the EPA and the Department of Transportation published in the Federal Register a joint memorandum of final policies and procedures on the implementation of highway funding sanctions. 45 Fed. Reg. 24692 (1980) (A copy of the Federal Register notice is contained in Plaintiffs' Appendix A, at A-76 through A-79). In that memorandum, the EPA and the Department of Transportation state that:

[i]n cases where a finding is made that the plan does not adequately consider the required elements, or where no plan is submitted, the question of whether good faith efforts are being made will need to be examined. This decision will be made on a case-by-case basis and rely on evidence submitted by the Governor demonstrating that he is moving toward submittal of an adequate plan in an orderly and expeditious manner.

45 Fed. Reg. at 24695, Plaintiffs Appendix A at A-79.

Because this memorandum announces an interpretive rule, this Court is required to give it "'important, but not controlling significance.'" General Motors Corp. v. Ruckelshaus, 724 F.2d 979, 985 [14 ELR 20110] (D.C. Cir. 1983) (quoting Batterton v. Francis, 432 U.S. 416, 424 (1977)). Interpretive rules are accorded varying degrees of deference, depending upon, among other things, "'the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements. . . .'" Id. (quoting General Electric Co. v. Gilbert, 429 U.S. 125, 142 (1976)). Varying degrees of deference may also be paid to an interpretive regulation depending upon "'the timing and consistency of the agency's position and the nature of its expertise.'" Id. at 985 n.38 (quoting Batterton, 432 U.S. at 425 n.9.)

In this case, although the joint memorandum does not indicate why the EPA and the Department of Transportation decided to interpret the statutory "or" as a conjunctive requirement, the Court finds that the statutory construction announced in that memorandum should be given substantial deference for two reasons. First, the memorandum was not prepared within a litigation framework and so does not appear to represent an interpretation manufactured to protect a challenged decision.

Second, and most important, although the plaintiffs allege that the memorandum does not exhibit any special agency expertise, this Court finds throughout the legislative history to the 1977 amendments to the Clean Air Act numerous references indicating Congress' [17 ELR 21216] recognition that the determination of how quickly the EPA may require a state to submit an implementation plan involves the application of the EPA's unique technical expertise. See H.R. Rep. No. 95-294, 95th Cong., 1st Sess., 48-51, 313-16 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 1126-29, 1392-95. Accordingly, the Court finds it appropriate to defer to the interpretation of 42 U.S.C. § 7506(a) that was announced in the EPA and the Department of Transportation's joint memorandum. The Court, therefore, holds that the termination of highway funding procedures that would otherwise be mandated under 42 U.S.C. § 7506(a) by the EPA's finding that a state has not submitted an adequate implementation plan may be postponed if the EPA also finds that the state is making reasonable efforts to submit an adequate plan.

Having determined that the EPA is allowed under 42 U.S.C. § 7506(a) to decline to initiate procedures to terminate federal highway funds to states that the EPA finds are making reasonable efforts toward submitting a plan, the Court must now address the question of whether it has jurisdiction to review the plaintiffs' allegation that the EPA's determination that the State of Arizona is making reasonable efforts toward submitting an adequate implementation plan is arbitrary or capricious.

The Clean Air Act provides separate grants of jurisdiction to review actions of the EPA in performing its obligations under the Clean Air Act to the district courts and the circuit courts. Under 42 U.S.C. § 7604, jurisdiction over actions brought by private citizens to require the EPA Administrator to perform any non-discretionary duties is vested in the United States district courts. Under 42 U.S.C. § 7607(b)(1), jurisdiction over petitions for review of the EPA Administrator's action in approving or disapproving a plan, or any other "final actions" under the Clean Air Act is vested in the United States courts of appeals.

The federal defendants contend that because the EPA's determination that a state is making reasonable efforts involves the exercise of discretion, that determination is not a non-discretionary duty over which this Court has jurisdiction. See Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 662-63 [5 ELR 20481] (1975). The plaintiffs, however, contend that because the EPA's determination that a state is making reasonable efforts toward submitting an adequate implementation plan may allow the EPA administrator to avoid performing a non-discretionary duty, this Court has jurisdiction under 42 U.S.C. § 7604 to review that determination for an abuse of discretion. Alternatively, the plaintiffs contend that this Court has jurisdiction under the Mandamus Act, 28 U.S.C. § 1361, to review the EPA's determination of reasonable efforts for an arbitrary or capricious abuse of discretion. See Miller v. Ackerman, 488 F.2d 920, 922 (8th Cir. 1973).

This Court finds that it does not have jurisdiction under the Clean Air Act to review the EPA's determination of the reasonableness of the State of Arizona's efforts toward submitting an adequate implementation plan. The fact that a non-discretionary duty may or may not arise upon the making of a discretionary duty may or may not arise upon the making of a discretionary decision does not detract from the discretionary content of the initial decision. Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1354 [8 ELR 20373] (9th Cir. 1978); Oljato, 515 F.2d at 662-63.

Similarly, the Court finds that it does not have jurisdiction under the Mandamus Act to review the EPA's determination of the reasonableness of the State of Arizona's efforts toward submitting an adequate implementation plan. First, the Mandamus Act only applies to those actions that seek to compel federal officials to perform mandatory or ministerial duties and does not apply to actions seeking the performance of discretionary tasks. Kennecott, 572 F.2d at 1356.

Second, jurisdiction under the Mandamus Act may be asserted only if there are no available alternative remedies. Id. In this case, judicial review of EPA's determination that the State of Arizona is making reasonable efforts toward submitting an acceptable implementation plan is not available in the district courts because of the discretionary elements inherent that determination. 42 U.S.C. § 7604; see Kennecott, 572 F.2d at 1354. Neither is judicial review of that determination available in the circuit courts because that determination does not constitute a "final action" pursuant to 42 U.S.C. § 7607(b)(1). Hawaiian Elec. Co., Inc. v. United States Envtl. Protection Agency, 723 F.2d 1440, 1442-43 [14 ELR 20438] (9th Cir. 1984).

When the absence of a statutory provision allowing for judicial review of interim, discretionary decisions of the EPA, such as the one at issue in this case, is considered in light of the otherwise detailed grants of jurisdictional authority contained in the Clean Air Act, the lack of such a provision appears to indicate Congress' intent that those decisions not be subject to judicial review. Cf. Kennecott, 572 F.2d at 1357 (indicating that the problems associated with the "premature interference with the administrative process" suggest the advisability of judicial restraint until the EPA issues a final order). If Congress did not intend that interim, discretionary decisions of the EPA be capable of avoiding judicial review, that oversight should either be remedied by Congress or by the Ninth Circuit, which, unlike this Court, has the authority to review the discretionary content of determinations rendered by the EPA. Accordingly, this Court finds that it would be inappropriate to assert its mandamus jurisdiction to review the EPA's determination that the State of Arizona is making reasonable efforts toward submitting an implementation plan.

The Court will now address the plaintiffs' request that this Court order the EPA to promulgate a federal implementation plan for attainment of national air quality standards within the State of Arizona. The statutory authorization for the promulgation of a federal implementation plan for states that have not attained national standards is contained in 42 U.S.C. § 7410(c). Pursuant to that statute:

The Administrator shall, after consideration of any State hearing record, promptly prepare and publish proposed regulations setting forth an implementation plan . . . for a State if —

(B) the plan . . . 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.

. . . 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 . . . a plan which the Administrator determines to be in accordance with the requirements of this section.

In opposing the plaintiffs' request that this Court order the EPA to promulgate a plan for the State of Arizona, the federal defendants contend that experience under the 1970 Clean Air Act with federally promulgated plans indicates that the persons promulgating those plans were not familiar enough with local transportation needs to be able to identify ways in which the public would favorably respond to alternative transportation methods. Additionally, the federal defendants suggest that previously promulgated plans were resisted within state administrations as an unwarranted federal intrusion into state affairs. They further urge that the federal plans were difficult to implement because of the impact that the plans imposed on state budgets and because federal courts had to become involved in day-to-day overseeing of state action if the state's implementation of the plan depended on judicial enforcement. See R. Melnick, Regulation and the Courts: The Case of the Clean Air Act 320-40 (1983) (A copy of Chapter Nine from Melnick's book was filed with the Court on May 11, 1987). Accordingly, the federal defendants urge that the promulgation of a federal plan should only be ordered in those cases where all other available sanctions have been imposed and the state still refuses to comply with Clean Air Act requirements.

The plaintiffs do not contradict the defendants' contention that federally promulgated plans are difficult to implement but suggest that those difficulties are part of the problems that need to be addressed if Congress' goal of attainment of national clean air standards is to be achieved. Additionally, the plaintiffs contend that Congress' intent that EPA be required to promulgate a federal plan may be inferred from the fact that despite difficult experiences with previously promulgated plans, Congress did not repeal this provision when it enacted other forms of sanctions in the 1977 amendments to the Clean Air Act.

The federal defendants' contention that the promulgation of a federal plan should only be imposed as a last resort lacks legislative or judicial support. The statute is clear and unambiguous on its face. [17 ELR 21217] Additionally, although the legislative history to the 1977 amendments to the Clean Air Act indicates Congress' awareness of the difficulty of enforcing federally promulgated plans, see H.R. Rep. No. 95-294, 95th Cong., 1st Sess., 315-16 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 1077, 1394-95, the legislative history also indicates that Congress did not attempt to eliminate those problems by restricting the instances in which federal plans are to be promulgated but rather by creating incentives for the States "to accept implementation and enforcement responsibility" for those plans. Id. at 316, reprinted in 1977 U.S. Code Cong. & Admin. News at 1395.

Despite the commendable efforts that the Pima and Maricopa Associations of Governments have made in the past eighteen months toward submitting adequate implementation plans, the EPA's duty under 42 U.S.C. § 7410(c) to promulgate a federal plan for the State of Arizona arose when the EPA found that the implementation plans that were submitted by Pima and Maricopa Counties were inadequate. 51 Fed. Reg. 33746-50 (1986). The possibility that the State of Arizona may soon adopt "a plan [that the EPA] determines to be in accordance with the requirements of the [Clean Air Act]" does not eliminate the EPA's obligation to begin the preparation of a federal plan for ensuring that compliance. 42 U.S.C. § 7410(c).

In the event that this Court ordered the promulgation of a federal plan, the federal defendants requested that they be allowed to demonstrate to the Court why a plan cannot be prepared in the six months allowed under the statute. Although the plaintiffs do not oppose the defendants' request to present to the Court their reasons for requesting an extension of the six month period, the plaintiffs also note that agencies claiming they cannot meet a Congressionally mandated deadline, bear a heavy burden of showing impossibility of performance. Sierra Club v. Thomas, 25 Env't Rep. Cas. (BNA) 1868, 1872 (N.D. Cal. 1987).

The Court is reluctant, at this point, to extend the six month period that Congress previously determined was adequate for the preparation of a federal implementation plan. Accordingly, the federal defendants' request to move for an extension of that time period is DENIED WITHOUT PREJUDICE. If, three months before the federal plan is due to be promulgated, compelling reasons exist to extend that deadline, the federal defendants' motion may be renewed.

In accordance, therefore, with the foregoing analysis, IT IS ORDERED that the plaintiffs' motion for partial summary judgment is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that the federal defendants' cross motion for summary judgment is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that the plaintiffs' Second, Seventh, Eleventh and Fifteenth Claims for Relief are DISMISSED for lack of subject matter jurisdiction. In light of that dismissal, IT IS FURTHER ORDERED that the motion for judgment on the pleadings that was filed by the Secretary of Transportation is DENIED AS MOOT.

IT IS FURTHER ORDERED that the six month period in which the federal defendants are obliged to promulgate a federal implementation plan for the State of Arizona shall begin to run when the Pima Association of Governments submits its final plan in September, 1987, but in no event, shall the six month period begin to run late than September 30, 1987.

1. The termination of funds, however, shall not apply to projects related to safety, mass transit, or for transportation improvement projects that are related to air quality improvement or maintenance. 42 U.S.C. § 7506(a).