IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DuBOIS, J. October 18, 2002MEMORANDUM

On January 12, 2001, plaintiff, Clean Air Council, filed a Complaint against defendant Bradley L. Mallory, in his capacity as the Secretary of the Pennsylvania Department of Transportation ("PennDOT"), and defendant, James M. Seif, in his capacity as the Secretary of the Pennsylvania Department of Environmental Protection ("DEP") (together, "defendants"). In the Complaint, plaintiff seeks to enforce the requirements of the Clean Air Act (the "CAA"), 42 U.S.C. §§ 7401-7627, under its citizen suit provision⁽¹⁾ and asks for declaratory and injunctive relief.

Presently before the Court are Plaintiff's Motion for Summary Judgment and Defendants' Cross-Motion for Summary Judgment. The Court heard oral argument on the motions. Upon consideration of the evidence in the record and the arguments of counsel, the Court denies defendants' Motion and grants plaintiff's Motion in part. Specifically, the Court declares that defendants Bradley L. Mallory, Secretary of PennDOT, and James M. Seif, Secretary of DEP, are in violation of "emission standards or limitations" within the meaning of the CAA, 42 U.S.C. § 7604(a)(1), (f), because the defendants failed to fully implement the motor vehicle inspection and maintenance program that is required by Pennsylvania's State Implementation Plan ("SIP"). The Court concludes that injunctive relief is appropriate and will conduct an evidentiary hearing to determine the schedule on which defendants will be required to fully implement the final motor vehicle inspection and maintenance program in the five-county Philadelphia area, as mandated by the United States Environmental Protection Agency ("EPA")-approved Pennsylvania SIP. Plaintiff will be granted leave to file a motion seeking attorney's fees and costs after the evidentiary hearing.

• BACKGROUND

The purpose of the CAA is "(1) to protect and enhance the Nation's air resources ... (2) to initiate and accelerate a national research and development program to achieve the prevention and control of air pollution; (3) to provide technical and financial assistance to State ... governments [in the] execution of their air prevention and pollution control programs; and (4) to encourage and assist the development and operation of regional air pollution prevention and control programs." Id. § 7401(b). Under the Act, the EPA must establish National Ambient Air Quality Standards ("NAAQS") for certain air pollutants. Id. § 7409(a). Primary NAAQS must be set at a level that will "protect the public health" with "an adequate margin of safety," id. § 7409(b)(1), and the EPA must establish secondary NAAQS at a level that will "protect the public welfare from any known or anticipated adverse effects associated with the presence of such air [pollution] in the ambient air." Id. § 7409(b)(2).

At issue in this action are alleged violations that relate to the requirements for attainment of the 1-hour NAAQS adopted by the EPA for ozone. 40 C.F.R. §§ 50.9. The CAA classifies an area as "nonattainment" for a particular air pollutant if the area does not satisfy the primary or secondary NAAQS for that particular air pollutant. 42 U.S.C. § 7407(d)(1)(A)(i). It further subdivides ozone nonattainment areas into "marginal," "moderate," "serious," "severe," or "extreme" based upon the severity and persistence of nonattainment. Id. §§ 7407(d), 7511(a). Effective November 15, 1990, the Administrator of the EPA designated and classified the Metropolitan Philadelphia Interstate Air Quality Control Region (Pennsylvania-New Jersey-Delaware) (the "Philadelphia ozone nonattainment area")⁽²⁾ as a severe ozone nonattainment area. Complaint ¶ 16; Answer ¶ 16. The Philadelphia ozone nonattainment area continues under such designation and classification to the present. Id.

The CAA mandates that states with ozone nonattainment areas submit to the EPA a state SIP setting forth the air pollution control measures by which the state will attain the ozone NAAQS by specified deadlines. 42 U.S.C. §§ 7502(c), 7511a(b)(1), (c), (d). Under the 1990 Amendments to the CAA, those states with "serious" and "severe" ozone nonattainment must provide for "enhanced" inspection and maintenance ("I/M") programs. The EPA is required to review each proposed SIP and approve or disapprove it. Id. § 7410(k). If the EPA approves the SIP in whole or in part, the approved portion(s) is then deemed to be incorporated into the state's "applicable implementation plan." Id. §§ 7413, 7602(q), 7604. A state may choose not to submit a SIP. In such a circumstance the EPA must devise a Federal Implementation Plan ("FIP"). Id. § 7410(c)(1).

The Commonwealth submitted proposed SIP revisions to the EPA for the attainment and maintenance of the ozone NAAQS in the Philadelphia ozone nonattainment area (the "Philadelphia SIP"). Complaint ¶ 17, Answer ¶ 17. In the Philadelphia SIP, the Commonwealth proposed implementing an enhanced motor vehicle inspection and maintenance program ("enhanced I/M") in the five Philadelphia counties located in the Philadelphia ozone nonattainment area under which automobiles that fail an emission test must be repaired to reduce their emission of ozone-forming pollutants unless exempted by waiver. Complaint ¶ 17, Answer ¶ 17. The EPA approved the Philadelphia SIP containing the enhanced I/M program and incorporated it into the Commonwealth's SIP (the "approved SIP") by Federal Register notices dated December 28, 1997; September 2, 1998; June 8, 1999; and June 17, 1999. Complaint ¶ 17; Answer ¶ 17.

The approved SIP mandates that the Commonwealth use an acceleration simulation mode ("ASM") test for emission testing of all 1981 and newer model year vehicles and all 1984 and newer model year light-duty trucks registered in the five-county Philadelphia area. Complaint ¶ 18; Answer ¶ 18; 67 Pa. Code § 177.51(f)(1). The approved SIP further requires that the Commonwealth employ specific pass/fail emission standards, or "cutpoints," for the ASM emissions tests. Id. § 177.204(2)(ii); 67 Pa. Code Ch. 177 App. A § 1. Two sets of cutpoints with corresponding compliance deadlines are required under the approved SIP: (1) compliance with start-up or initial cutpoints for the first phase of the program commencing October 1, 1997, 67 Pa. Code Ch. 177 App. A §§ 1(a)(1),(3); and (2) compliance with final cutpoints for the second phase of the program commencing December 1, 1998 and continuing thereafter. Id. §§ 1(a)(2),(3); Complaint ¶ 19; Answer ¶ 19.

DEP and PennDOT have a duty to implement the enhanced I/M program. See 35 Pa. Cons. Stat. Ann. § 4004 ("[DEP] shall have power and its duty shall be to - (1) Implement the provisions of the Clean Air Act in the Commonwealth ..."); 75 Pa. Cons. Stat. Ann. § 4706(b)(1) ("... if the secretary shall certify that a system is required to comply with the Clean Air Act ... the department [of Transportation] shall establish and administer an enhanced emission inspection program..."); Id. § 4706(e) ("... [PennDOT] shall promulgate such regulations as may be necessary to implement the emission inspection program ..."). Defendants, as heads of their state departments, are responsible for implementation of the enhanced I/M program. 71 Pa. Cons. Stat. Ann. § 66. To do so, defendants must fully implement the final cutpoints in Pennsylvania's approved SIP. 67 Pa. Code Ch. 177 Appendix A.

Defendants complied with the first phase of the program and fully implemented the initial start-up cutpoints. Defendants admit that they have failed to fully implement the final cutpoints for the second phase of the enhanced I/M program with which the approved SIP required compliance by December 1, 1998. See Complaint ¶ 22; Answer ¶ 22. By letter dated May 25, 2000, Secretary Seif's designee informed the EPA that the Secretary would not fully implement the final cutpoints because the Commonwealth has "committed to a schedule whereby all model years vehicles subject to the Philadelphia-area inspection and maintenance program will be required to meet final cutpoints by the start of the 2005 ozone season" and "the Philadelphia area will ... meet its 2002 emission reduction milestone." Answer ¶ 20. It is this noncompliance which is the gravamen of plaintiff's Complaint.

Section 7604(b)(1)(A) of the CAA states that "[n]o action may be commenced ... under subsection (a)(1) of this section ... prior to 60 days after the plaintiff has given notice of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order ...." 42 U.S.C. § 7604(b)(1)(A). On January 13, 2000, plaintiff sent a Notice of Intent to Sue, pursuant to 42 U.S.C. § 7604(b), by certified letter to defendants and the Administrator of the EPA. Complaint ¶ 5; Answer ¶ 5. Over 60 days have elapsed since Clean Air Council served notice as required by 42 U.S.C. § 7604(b)(1)(A) and the violations of which plaintiff complains in the notice are continuing. See Complaint ¶ 22; Answer ¶ 22. Thus, plaintiff has satisfied the required 60-day notice under 42 U.S.C. § 7604(b)(1)(A).

In the Complaint plaintiff alleges that, "by failing to fully implement the state's enhanced vehicle inspection and maintenance ("I/M") program as required by Pennsylvania's state implementation plan," Secretary Mallory and Secretary Seif violated and continue to violate the CAA. Complaint ¶ 2. Plaintiff maintains that the failure of defendants "to meet the applicable December 1, 1998 deadline to fully implement the SIP's emission test pass/fail standards ... for motor vehicles in the five-county Philadelphia ozone nonattainment area ... violates 'an emission standard or limitation' under the Act." Complaint ¶ 2, 3. To remedy this violation, plaintiff requests that the Court "[d]eclare that [d]efendants are in violation of 'emission standards or limitations' within the meaning [of] 42 U.S.C. § 7604(a)(1), (f)" and direct "[d]efendants to forthwith impose, fully implement, and fully comply with the second-phase cutpoint in the five-county Philadelphia area as required by the approved SIP." Complaint ¶ 30. Plaintiff also seeks, inter alia, "costs and reasonable attorney and expert witness fees." Id.

Plaintiff filed its Motion for Summary Judgment on March 21, 2001; on April 27, 2001, defendants filed the Commonwealth Defendants' Cross-Motion for Summary Judgment. On May 29, 2001, plaintiff filed a Reply Brief in Support of Plaintiff's Motion for Summary Judgment and Opposition to Defendants' Cross-Motion for Summary Judgment, and on June 12, 2001, defendants filed their Reply Brief in Support of Commonwealth Defendants' Cross-Motion for Summary Judgment. Plaintiff then filed an Unopposed Motion for Leave to Submit New Authority - Cox v. Dallas, 256 F.3d 281 (5th Cir. 2001) - on the ground that it refutes defendants' sovereign immunity argument. The Court granted that motion by Order dated July 17, 2001. On September 7, 2001, the Court held oral argument and granted the parties leave to file supplemental memoranda on the issue of whether plaintiff's claims under the CAA allege violations of state or federal law. Both parties thereafter filed supplemental memoranda.

• STANDARD OF REVIEW

"If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[,]" summary judgment shall be granted. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The Supreme Court has explained that Rule 56(c) requires "the threshold inquiry of determining whether there is the need for a trial - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Therefore, "a motion for summary judgment must be granted unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (citing Anderson and Celotex Corp.).

In considering a motion for summary judgment, the evidence must be considered in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159 (1970) (quoting United States v. Diebold, 369 U.S. 654, 655 (1962)). However, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Therefore, "[i]f the evidence [offered by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). On the other hand, if reasonable minds can differ as to the import of the proffered evidence that speaks to an issue of material fact, summary judgment should not be granted.

III. DISCUSSION

In its motion, plaintiff argues that Secretaries Seif and Mallory have admitted that they failed to fully implement the final emission standards of the enhanced I/M program by the applicable SIP implementation deadline of December 1, 1998 and are thus in violation of the CAA. Pl.'s Mot. for Summ. J. at 6. Plaintiff seeks to enforce compliance with the implementation deadline and the final cutpoints through the CAA's citizen suit provision, 42 U.S.C. § 7604, and asks the Court to direct defendants to fully implement those final emission standards.

Defendants, on the other hand, ask this Court to grant summary judgment in their favor on the ground that the suit is barred by the Eleventh Amendment. Alternatively, defendants contend that the parties have presented genuine issues of material fact that preclude summary judgment. With respect to a remedy, defendants argue that the Court should assert its equitable powers and not issue an injunction. The Court first turns to defendants' sovereign immunity argument.

A. Sovereign Immunity under the Eleventh Amendment / Applicability of the Ex Parte Young Exception to the Citizen Suit Provision of the Clean Air Act

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. Amend. XI. This "amendment has been interpreted to make states generally immune from suit by private parties in federal court." MCI Telecomm. Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001) (citations omitted). "This immunity extends to state agencies and departments." Id. (citing C.H., ex rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000) (en banc)). There are three exceptions to Eleventh Amendment immunity: "1) congressional abrogation, 2) state waiver, and 3) suits against individual state officers for prospective relief to end an ongoing violation of federal law." Id. The third exception to Eleventh Amendment immunity was created by Ex parte Young, 209 U.S. 123 (1908).⁽³⁾

Plaintiff alleges in the Complaint that defendants, in their capacity as Commonwealth officials, violated and continue to violate the CAA by failing to fully implement the final emission standards in the Philadelphia SIP. Thus, they argue that the doctrine of Ex parte Young is applicable to this case.

Under the Ex parte Young doctrine, "individual state officers can be sued in their individual capacities for prospective injunctive and declaratory relief to end continuing or ongoing violations of federal law." MCI Telecomm. at 506. Such a suit (one alleging that a state officer violated federal law) is not considered a suit against the state, and thus is not barred by the Eleventh Amendment. The theory is that, because a state cannot authorize unconstitutional or illegal conduct, the state officer's action is ultra vires and "stripped of [its] official or representative character." Ex parte Young, 209 U.S. at 160. This doctrine, which applies to violations of the United States Constitution and federal statutes, is "accepted as necessary to permit federal courts to vindicate federal rights and hold state officials responsible to the 'supreme authority of the United States.'" Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting Ex parte Young, 209 U.S. at 160).

Relief under the Ex parte Young doctrine is not unlimited; it is on these limitations that defendants rely in advancing the argument that the Ex parte Young exception to the Eleventh Amendment is not available to enforce violations of the CAA against state officials. Defendants advance three grounds in support of that argument: (1) the detailed remedial scheme of the CAA evidences Congress' intention to restrict the availability of Ex parte Young actions to enforce violations of the statute against state officials; (2) the Commonwealth has a special state sovereignty interest in enforcement of its approved SIP; and (3) plaintiff seeks only to enforce state, not federal law. The Court addresses each argument in turn.

1. Detailed Remedial Scheme - Applicability of Ex parte Young after Seminole Tribe

In Seminole Tribe of Florida v. Florida the Supreme Court ruled that the Ex parte Young exception to the Eleventh Amendment is not available where "Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right." 517 U.S. 44, 74 (1996). The Court in Seminole Tribe examined the remedial scheme of the Indian Gaming and Regulatory Act (the "IGRA") - an Act that provides a statutory basis for the operation and regulation of gaming by Indian tribes, see 25 U.S.C. § 2502 - and concluded that Congress' decision to include an elaborate remedial scheme in the Act demonstrated that it did not intend to subject states and state officials to liability under the statute. Id. at 75 ("By contrast with this quite modest set of sanctions, an action brought against a state official under Ex parte Young would expose that official to the full remedial powers of the federal court, including, presumably, contempt sanctions."). The Court reasoned that "[i]f § 2710(d)(3) [of the IGRA] could be enforced in a suit under Ex parte Young, [the detailed remedial scheme] would have been superfluous; it is difficult to see why an Indian tribe would suffer through the intricate scheme [of this Act] when more complete and more immediate relief would be available under Ex parte Young." Id. On this basis, the Court held that the petitioner in Seminole Tribe could not enforce the IGRA against a state official - in that case, the Governor of Florida - by utilizing the doctrine of Ex parte Young. Id. at 75-76.

Defendants, relying on Seminole Tribe, argue that plaintiff may not enforce defendants' alleged violations of the CAA under the doctrine of Ex parte Young because, similar to the remedial scheme of the IGRA, the "detailed remedial scheme" set forth by Congress in the CAA manifests Congress' intention "to impose upon the State a liability that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young." Id. at 75-76. In advancing this argument, defendants point out that the CAA provides two specific remedies for a state's failure to implement provisions of an EPA-approved SIP: (1) imposition of sanctions under 42 U.S.C. §§ 7509(a)(4) and (b); and (2) enforcement of the EPA-approved SIP directly by the EPA pursuant to 42 U.S.C. § 7413(a)(2). These provisions, according to defendants, demonstrate that Congress contemplated the EPA as a necessary part of the CAA's remedial scheme and that permitting this action to go forward under Ex parte Young, without involvement of the EPA, would constitute a judicial enlargement of the remedies chosen by Congress to enforce the CAA and make the statute's remedial scheme superfluous. Defs.' Brief at 13. Defendants further assert that the CAA's remedial scheme allows private parties to compel the EPA to fulfill its nondiscretionary duties required by the statute by filing a citizen suit against the Administrator of the EPA. See 42 U.S.C. § 7604(a)(2).

Although the Court agrees that Seminole Tribe narrowed the applicability of the Ex parte Young doctrine in certain instances, that decision has no impact on the applicability of Ex parte Young to the instant action. This Court, relying on the language of the statute and Seminole Tribe, concludes that the CAA contains a limited remedial scheme; Seminole Tribe thus does not preclude plaintiff from maintaining the instant action under Ex parte Young.

It is significant that Congress, in enacting the CAA, included a citizen suit provision, 42 U.S.C. § 7604, in the statute's remedial scheme; in contrast, the IGRA contains no such provision. That provision of the CAA permits private citizens to utilize civil suits to enforce the statute:

[A]ny person may commence a civil action on his own behalf ... 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 have violated ... or 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.

42 U.S.C. § 7604(a)(1).

The citizen suit provision plays an integral role in the remedial scheme of the CAA; it serves "to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if agencies remain inert, to provide an alternative enforcement mechanism." Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3d Cir. 1979). By including the terms "any person" and "to the extent permitted by the Eleventh Amendment," this Court finds that Congress clearly meant to allow private citizens to use this provision as a means of private enforcement against state officials within the limits of the Eleventh Amendment. See Cox, 256 F.3d at 309 ("That the RCRA authorizes suits against 'any person' 'to the extent permitted by the eleventh amendment' clearly indicates that Congress specifically intended to permit suits against states within the bounds of the [Eleventh] Amendment.").

This conclusion is consistent with the Supreme Court's opinion in Seminole Tribe. In footnote 17 of Seminole Tribe, the Court addressed the relative complexity of remedial schemes when it distinguished the IGRA's remedial scheme from remedial schemes set forth in statutes such as the Clean Water Act (the "CWA"):⁽⁴⁾

[W]e do not hold that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme ... In this regard, [the IGRA] stands in contrast to the statutes [such as the CWA] cited by the dissent as examples where lower courts have found that Congress implicitly authorized suit under Ex parte Young. Compare 28 U.S.C. § 2254(e) (sic) (federal court authorized to issue an "order directed to an appropriate State official") [with] 33 U.S.C. § 1365(a) (authorizing a suit against "any person" who is alleged to be in violation of relevant water pollution laws).

517 U.S. at 75 n.17.

Given that the language of the citizen suit provision in the CAA is identical to language of the CWA's citizen suit provision, this Court interprets the CAA's remedial scheme in a manner that is consistent with the Supreme Court's interpretation of the CWA's remedial scheme in Seminole Tribe and rules that, by including the citizen suit provision in the CAA, Congress implicitly authorized enforcement of the CAA against state officials under the doctrine of Ex parte Young. At least one other court, relying on footnote 17 of Seminole Tribe and the identical nature of language of the CWA's and CAA's citizen suit provisions, has drawn the same conclusion, stating "Seminole Tribe does not support the position that Congress did not intend to authorize federal jurisdiction over an action brought pursuant to the CAA." Sweat v. Hull, 200 F. Supp. 2d 1162, 1168 n. 8 (D. Ariz. 2001).

In so ruling this Court has also found persuasive the decisions in a number of other post-Seminole cases that the citizen suit provisions of other environmental statutes - the Clean Water Act (the "CWA"), the Endangered Species Act (the "ESA"), and the Resource Recovery and Conservation Act (the "RCRA"), 42 U.S.C. § 6972 et seq. (1995) - are implicit legislative authorization for suit under Ex parte Young. In Natural Res. Def. Council v. California Dep't of Transp., 96 F.3d 420 (9th Cir. 1996), for example, the Ninth Circuit held that a private citizen could bring suit under Ex parte Young against a state officer to enforce violations of the CWA, explaining that Congress intended to make the public a part of the remedial scheme in enforcement of the statute by including a citizen suit provision in the statute. Id. at 424. Similarly, the First Circuit concluded that the specific legislative reference to the Eleventh Amendment in the citizen suit provision of the ESA was conclusive evidence that the public could seek an injunction against a state officer for violation of the ESA. Strahan v. Coxe, 127 F.3d 155, 166 (1st Cir. 1997). That court ruled that Ex parte Young applied to those cases seeking prospective equitable relief against state officials for violations of the ESA. Id. at 166-67.

Likewise, the Fifth Circuit, applying Seminole Tribe, determined that the RCRA is a statute that permitted an Ex parte Young action. See Cox, 256 F.3d at 308-09; see also Prisco v. State of New York, 1996 WL 596546, No. 91 Civ. 3990 (RLC) (S.D.N.Y. Oct. 6, 1996) (ruling that the inclusion of a citizen suit provision in a statute evidenced Congress' intention that Ex parte Young actions be a part of the remedial scheme of the statute). In so ruling the Fifth Circuit relied on Congress' explicit reference to the Eleventh Amendment in the RCRA citizen suit provision and, citing footnote 17 in Seminole Tribe, on the similarity between the citizen suit provisions of the CWA and RCRA. Cox, 256 F.3d at 308-09. The court concluded that "RCRA embraces the Ex parte Young doctrine as a feature of its remedial scheme." Id. at 309.

The Court concludes that, unlike petitioner in Seminole Tribe, plaintiff in this case only seeks to obtain injunctive relief under the statute's limited remedial scheme. Accordingly, plaintiff's CAA claim against defendants is not barred by Seminole Tribe's exception to the Ex parte Young doctrine.

2. Special State Sovereignty Interest - Applicability of Ex parte Young after Coeur d'Alene

Defendants also rely on Justice Kennedy's opinion in Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997), as authority for the proposition that the doctrine of Ex parte Young is inapplicable to the instant action. They contend that, applying the case-by-case balancing approach adopted by Justice Kennedy's opinion in Coeur d'Alene, two factors counsel against permitting the instant action to proceed under the doctrine of Ex parte Young: (1) plaintiff has an adequate state forum for resolving its dispute with respect to implementation of the final ATM cutpoints, Def's Summ. J. Brief, at 14, and (2) plaintiff's claim implicates Pennsylvania's "special sovereignty interest" in the design of its enhanced I/M program and enforcing (or not enforcing) state regulations. Defs.' Reply, at 3-4. This Court rejects defendants' argument; it concludes that defendants misinterpret the precedential value of Coeur d'Alene and that the instant case is distinguishable from Coeur d'Alene.

In Coeur d'Alene, an Indian tribe filed suit against Idaho state officers contending that, under federal law, it should hold title to the banks, beds, and submerged lands of Lake Coeur d'Alene and the various navigable rivers and streams forming part of its waterway. See Coeur d'Alene, 521 U.S. at 264. In the principal opinion authored by Justice Kennedy, a five-Justice majority ruled that "Young did not permit the action because the Tribe's suit, although brought against individual officers for prospective relief from an ongoing violation of federal law, was the functional equivalent of a quiet title action against the state, which, if successful, would divest the state of title and sovereign control over the waters and submerged lands." MCI Telecomm., 271 F.3d at 506-07 (citing Coeur d'Alene, 521 U.S. at 283).

Justice Kennedy continued, in the principal opinion, by suggesting "that Young is not applicable to every case in which prospective relief is sought against an individual officer from an ongoing violation of federal law," MCI Telecomm., 271 F.3d at 507 (citing Coeur d'Alene, 521 U.S. at 270), and that a court, in determining whether to apply Ex parte Young, must conduct a case-by-case balancing inquiry, carefully balancing the federal and broad state interests. Under this narrow approach, Justice Kennedy stated the doctrine of Ex parte Young applies in only two situations: first, where there is no state forum available to vindicate federal rights, see Coeur d'Alene, 521 U.S. at 270, and second, where the case calls for the interpretation of federal law. See id. at 274.

That part of the principal opinion adopting a case-by-case balancing approach to Young was joined only by the Chief Justice. Justice O'Connor, joined by Justices Scalia and Thomas, authored a separate opinion that, in a partial concurrence, rejected the case-by-case balancing approach, stating that "[t]his approach unnecessarily recharacterizes and narrows much of our Young jurisprudence." Id. at 291. Justice O'Connor explained that "[t]he principal opinion replaces a straightforward inquiry into whether a complaint alleges an ongoing violation of federal law and seeks [prospective] relief ... with a vague balancing test that purports to account for a 'broad' range of unspecified factors," id. at 296, and concluded that under Supreme Court precedent, "a Young suit is available where a plaintiff alleges an ongoing violation of federal law, and where the relief sought is prospective rather than retrospective." Id. at 294. In dissent, Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, disagreed with the majority's ruling that Ex parte Young did not authorize the action, but observed that Justice O'Connor's partial concurrence "reject[ed] the lead opinion's call for ... case-by-case balancing," and noted that "there is reason for great satisfaction that Justice O'Connor's view is the controlling one." Id. at 297-98.

The Third Circuit has expressly rejected the case-by-case balancing approach suggested by Justice Kennedy in Coeur d'Alene, and ruled that "Young continues to permit actions against state officers for prospective relief from ongoing violations of federal law; no case-by-case balancing is necessary or proper." MCI Telecomm., 271 F.3d at 508. In doing so that court explained that "Justice Kennedy's opinion in Coeur d'Alene cannot be read to establish the controlling standard for Young. Seven Justices rejected such balancing and agreed that Young should apply when an action against a state officer alleges an ongoing violation of federal law and seeks prospective relief." 271 F.3d at 507 (citing Coeur d'Alene, 521 U.S. at 296). In so ruling the court relied, in part, on the Fifth Circuit's decision in Earles v. State Bd. of Certified Pub. Accountants of Louisiana, 139 F.3d 1033, 1039 (5th Cir. 1998), "that, because a majority of the Supreme Court would adhere to the more traditional application of Young, the Fifth Circuit would also continue to do so." 271 F.3d at 507. Adhering to Third Circuit precedent, this Court rejects defendants' assertion that it should apply a case-by-case balancing approach to determine whether Young applies to the instant action.

However, the Third Circuit has recognized that "Coeur d'Alene did carve out one narrow exception to Young: an action cannot be maintained under Young in those unique and special circumstances in which the suit against the state officer affects a unique or essential attribute of state sovereignty, such that the action must be understood as one against the state." Id. at 508. For example, as recognized by the Supreme Court in Coeur d'Alene, a state has a special state sovereignty interest in the state's title, control, possession, and ownership of water and land. 521 U.S. at 287.

Attempting to implicate this narrow exception, defendants argue that, similar to the state of Idaho in Coeur d'Alene, "[t]he Commonwealth has a 'special sovereignty interest' both in the design of its enhanced I/M program and enforcing (or not enforcing) state regulations." Defs.' Reply, at 4. The Court does not find the comparison persuasive. The discrete remedial action sought by plaintiff in this case - implementation of the final emission cutpoints contained within the EPA-approved Pennsylvania SIP - does not amount to the type of expansive and permanent intrusion on sovereignty interests sought by plaintiffs in Coeur d'Alene. Accordingly, the Court rules that Coeur d'Alene does not preclude plaintiff's use of Ex parte Young in this action.

3. Enforcement of Federal Law - Applicability of Ex Parte Young Under Pennhurst

Prospective relief enjoining violations of state rather than federal law falls outside the scope of the Ex parte Young exception to the Eleventh Amendment immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). Citizens cannot use the Ex parte Young exception to enforce violations of state law.

Plaintiff, relying on Concerned Citizens of Bridesburg v. Phila. Water Dep't, 843 F.2d 679 (3d Cir. 1988), argues that it is seeking to enjoin a violation of federal law, not state law. In that case, the Third Circuit held that "[t]he Pennsylvania SIP is a federal regulation promulgated pursuant to the Clean Air Act," id. at 680, and affirmed the district court's pretrial determination that the plaintiff's complaint, alleging a violation of city and state odor regulations that were part of the EPA-approved Pennsylvania SIP, is "a cognizable federal claim under the Pennsylvania SIP." Id. at 681. Defendants, on the other hand, although conceding in their brief that "the state regulation at issue, because it was incorporated into the SIP, has the force and effect of a federal regulation," Defs.' Reply Br. at 3 n. 5, asserted at oral argument that, under Pennhurst, plaintiff cannot use Ex parte Young to enforce violations of Pennsylvania's EPA-approved SIP because plaintiff alleges only violations of state law, not federal law. Defendants maintain that "Pennsylvania's SIP and the thereinto incorporated vehicle inspection emission inspection regulations set forth at 67 Pa. Code § 177, have not been incorporated into federal law, at least for purposes of a citizen suit like this one." Defs.' Supp. Br. at 1. In advancing this argument, defendants rely on the Fourth Circuit's decision in Bragg v. West Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001), which held, inter alia, that state law must be explicitly incorporated into federal law for enforcement purposes. Id. at 297. Alternatively, defendants contend that the provisions of the SIP that plaintiff seeks to enforce have been incorporated into federal law for the limited "purpose [of] ... actual enforcement by [the] EPA," Defs.' Supp. Br. at 6, not by private plaintiffs.

Defendants also argue that Concerned Citizens of Bridesburg is inapposite to the instant action because it predates Seminole Tribe and cites to 42 U.S.C. § 7610 for its holding that the Pennsylvania SIP is a federal regulation promulgated under the CAA. Concerned Citizens of Bridesburg, 843 F.2d at 680. Defendants assert that § 7610 deals only with the impact of the CAA on other laws enforced by the EPA Administrator and "nonduplication of appropriations," and does not address the incorporation of state law or the SIP into federal law. Defs.' Supp. Br. at 11. This Court rejects defendants' arguments and concludes that plaintiff is seeking to enforce federal law, not state law.

The CAA requires in 42 U.S.C. § 7410 that each State submit its proposed SIP to the EPA for approval:

Each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator, within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof) under section 7409 of this title for any air pollutant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Administrator (either as a part of a plan submitted under the preceding sentence or separately) within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national ambient air quality secondary standard (or revision thereof), a plan which provides for implementation, maintenance, and enforcement of such secondary standard in each air quality control region (or portion thereof) within such State ....

42 U.S.C. § 7410(a)(1). Section 7410(a)(2) further provides that each SIP shall, inter alia, "include enforceable emission limitations and other control measures, means, or techniques ... as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements for this chapter ..." Id. § 7410(a)(2)(A); it gives the EPA the authority to accept or reject a proposed SIP, and to establish an implementation plan for states that do not submit a SIP that meets the standards of the Clean Air Act. Id. § 7410(a)(2), (c). Once approved by the EPA, a SIP has the force and effect of federal law, thereby permitting the Administrator to enforce it in federal court. Id. § 7413(a), (b).

Plaintiff alleges in the Complaint that defendants have not complied with the Philadelphia SIP. Specifically, plaintiff asserts that defendants have violated and continue to violate emission standards or limitations within the meaning of 42 U.S.C. § 7604(a)(1) and (f) by failing to meet the applicable December 1, 1998 deadline to fully implement the SIP's [second-phase] emission test pass/fail standards, or "cutpoints," for motor vehicles in the five-county Philadelphia ozone nonattainment area. The Philadelphia SIP refers to the state implementation plan designed to attain and maintain the ozone NAAQS by, inter alia, implementing the enhanced I/M program, including the enhanced I/M's December 1, 1998 compliance deadline and its final cutpoints, in the five Pennsylvania counties located within the Philadelphia ozone nonattainment area. Plaintiff now seeks to enforce the December 1, 1998 compliance deadline and the final cutpoints of the SIP. As discussed above, the EPA announced its approval of Pennsylvania's I/M SIP under § 7410 through a series of Federal Register notices. 62 Fed. Reg. 4004 (Jan. 28, 1997); 63 Fed. Reg. 46,664 (Sept. 2, 1998); 64 Fed. Reg. 30,399 (June 8, 1999); 64 Fed. Reg. 32,411 (June 17,1999). Because the SIP was approved by the EPA, it thus has the force and effect of federal law. Id. § 7413(a), (b).

The citizen suit provision of the CAA, 42 U.S.C. § 7604, provides that any person may enforce a SIP requirement 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) ..." under § 7604 if the alleged violation (1) fits within one of the definitions of an "emission standard or limitation" under § 7604(f), and (2) is "in effect under this chapter ... or under an applicable implementation plan." Id. § 7604(a)(1)(A), (f). The Act defines "emission standard or limitation under this chapter" to include, inter alia, "a schedule or timetable of compliance, emission limitation, standard of performance or emission standard," id. § 7604(f)(1), "any condition or requirement under an applicable implementation plan relating to ... vehicle inspection and maintenance programs," id. § 7604(f)(3), and "any other standard, limitation, or schedule established under ... any applicable State implementation plan approved by the Administrator [of EPA] ...." Id. § 7604(f)(4). An "applicable State implementation plan" is defined as "the portion (or portions) of the implementation plan, or the most recent revision thereof, which has been approved under section 7410 of this title." Id. § 7602(q). Therefore, "any condition or requirement under an applicable implement plan relating to vehicle inspection and maintenance programs" that is "in effect under this chapter or an applicable implementation plan ..." has been incorporated into federal law for purposes of private citizen enforcement under the CAA. See Dela. Valley Citizens' Council for Clean Air v. Davis, 932 F.2d 256, 264 (3d Cir. 1991) ("Section 7604 permits citizens to commence civil suits in the district courts against persons who violate either emission standards or limitations promulgated under various sections of the Act or orders issued by the EPA or a state concerning those standards or limitations."); Am. Lung Ass'n of N.J. v. Kean, 871 F.2d 319, 325 (3d Cir. 1989) (stating that "the explicit language of the Clean Air Act permits this suit, since the regulations at issue are requirements" that are specifically identified as "emission standards or limitations" under the citizen suit provision).

The approved SIP's December 1, 1998 compliance deadline and its final cutpoints fit within the definition of "any condition or requirement under an applicable implementation plan relating to ... vehicle inspection and maintenance programs," id. § 7604(f)(3), and thus are "emission standards or limitations." Further, the parties do not dispute and the Court agrees that the approved SIP's December 1, 1998 compliance deadline fits within the definitions of "a schedule or timetable of compliance" and a "schedule established under ... any applicable State implementation plan." Id. § 7604(f)(1), (4). Nor do the parties dispute that the enhanced I/M's final cutpoints fall within at least one of the definitions of "emission standard or limitation" in that they are "emission limitation[s]" or "emission standard[s]" or "any other standard [or] limitation established under an applicable State implementation plan." Id.

Furthermore, this Court recognizes that NAAQS themselves are not "emission standard[s] or limitation[s]" as defined by the Act. See Coalition Against Columbus Ctr. v. City of New York, 967 F.2d 764, 769 (2d Cir. 1992) ("A cornerstone of this Court's interpretation of the citizen suit provision is the principle that an air quality standard established under the Clean Air Act is not an 'emission standard or limitation.'") (citations omitted). However, plaintiff does not seek to compel general compliance with the NAAQS. Rather, plaintiff seeks to enforce specific requirements aimed at achieving the NAAQS. Courts have recognized the importance of this distinction for purposes of enforcement under § 7604.

In Coalition Against Columbus Center, the Second Circuit held that it had jurisdiction over a suit brought under § 7604 to enforce a provision of the New York SIP because it was not directed at general compliance with the NAAQS:

To further ensure that the carbon monoxide standard is attained in New York City, if an [Environmental Impact Statement] for a project proposal identifies a violation or exacerbation of the carbon monoxide standard, then the City commits to assure that mitigating measures will be implemented by the project sponsor or City, so as to provide for attainment of the standard by December 31, 1987 and maintenance of it thereafter.

Id. at 767 (quoting New York SIP § 3.6(B)). The court in Coalition Against Columbus Center explained that the issue before it was "whether an action to enforce [this SIP provision] constitutes an effort to compel general compliance with an air quality standard or whether it is an effort to enforce a specific strategy to attain an air quality standard." Id. at 770. The court distinguished the SIP provision before it from the SIP provision held to be unenforceable in Wilder v. Thomas, 854 F.2d 605 (2d Cir. 1988), cert. denied, 489 U.S. 1053 (1989). The provision at issue in Wilder provided that "all [carbon monoxide] hot spots will be eliminated by the end of 1987." Id. at 609. In distinguishing Wilder, the court in Coalition Against Columbus Center explained that the claim to enforce the hot spot "was simply an effort to enforce the NAAQS for carbon monoxide and therefore could not be maintained under section 7604 of the Act." Coalition Against Columbus Center, 967 F.2d at 770. Moreover, "[t]he statement 'that all hot spots will be eliminated by the end of 1987 ... merely restated the [Act's] requirement that the NAAQS for carbon monoxide must be attained by December 31, 1987." Id. In contrast to Wilder, the Columbus Center court pointed out that the provision at issue in that case "does not merely restate the NAAQS, it further 'commits the City to take affirmative ... steps to achieve the [national ambient air quality] standard.'" Id. at 771 (quoting Atlantic Terminal Urban Renewal Area Coalition v. N.Y.C. Dep't of Envtl. Protection, 697 F. Supp. 157, 161 (S.D.N.Y. 1988)).

The provision at issue in the instant case commits the Commonwealth to take specific steps in an effort to bring the Philadelphia nonattainment area into compliance with the Act. Specifically, the SIP requires that the Commonwealth utilize ASM emission tests for all 1981 and newer model year vehicles and all 1984 and newer model year light-duty trucks registered within the five-county Philadelphia area and that those ASM emission tests employ specific "final" pass/fail emission standards, or cutpoints, commencing December 1, 1998.

Because the SIP requirement in the instant case contains a list of affirmative steps that the Commonwealth must take to comply with its terms, it does not merely "restate[] the [Act's] requirement that the NAAQS ... must be attained," id. at 770, but rather contains a "valid, identifiable strategy" for achieving its ends. Id. at 771. Consequently, the enhanced I/M program - the final cutpoints and the December 1, 1998 deadline for implementation of the final cutpoints - created under the approved SIP are not designed to lead to general compliance with the NAAQS itself, but with specific requirements established as a mechanism for achieving the NAAQS. These requirements of the SIP satisfy the threshold definition of an "emission standard or limitation" under § 7604(a)(1)(A).

In order to qualify as an enforceable "emission standard or limitation under this chapter," id., a given requirement must be "in effect under this chapter ... or under an applicable implementation plan." Id. § 7604(f). This Court concludes that the "vehicle inspection and maintenance programs" at issue are in effect under an applicable implementation plan because they are included in the Pennsylvania SIP.⁽⁵⁾ In this regard, by seeking to compel compliance with programs that are included in the EPA-approved Pennsylvania SIP, plaintiff is seeking to enforce federal law, not state law. The Third Circuit so held in Concerned Citizens of Bridesburg, ruling that the EPA-approved Pennsylvania SIP is a "federal regulation promulgated pursuant to the Clean Air Act," id. at 680, and that allegations of program violations which are part of that SIP, properly presented under the citizen suit provision of the CAA, constitute a "cognizable federal claim." Id. at 681.

Defendants attempt to distinguish Concerned Citizens of Bridesburg by contending that it predates Seminole Tribe and cites to § 7610, a provision of the CAA that does not implicate the issue of incorporation. This Court is not persuaded by defendants' arguments. As mentioned above, Seminole Tribe does not curtail Congress' power to authorize suits under Ex parte Young, such as the citizen suit provision of the CAA. Furthermore, the Court agrees with plaintiff that a reading of the entire opinion supports the conclusion that the Third Circuit erroneously made reference in the opinion to § 7610 - which speaks only to the affect of the CAA on other laws enforced by the EPA Administrator and the nonduplication of appropriations - intending to cite § 7410 - which addresses SIPs and the EPA's role in approving them - in holding that "[t]he Pennsylvania SIP is a federal regulation promulgated pursuant to the [CAA]." 843 F.2d at 680.

In ruling that the EPA-approved SIP is federal law, this Court also relies on Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992), where the Supreme Court held that an EPA regulation requiring water pollution discharge permits to comply "'with the applicable water quality requirements of all affected States[,]' 40 C.F.R. § 122.4(d) (1991) ... effectively incorporates into federal law those state-law standards the Agency reasonably determines to be 'applicable.'" The incorporation provision at issue in this case, § 7604(f), is even more explicit than that presented in Arkansas v. Oklahoma.

Moreover, the Court observes that a number of other courts have ruled that a specific provision of an EPA-approved state SIP is federal law and thus enforceable under the citizen suit provision of the CAA. See Trustees for Alaska v. Fink, 17 F.3d 1209, 1210 n.3 (9th Cir. 1994) ("Having 'the force and effect of federal law,' the EPA-approved and promulgated Alaska SIP is enforceable in federal courts.") (quoting Union Electric Co. v. E.P.A., 515 F.2d 206, 211 & n.17 (8th Cir. 1975), aff'd, 427 U.S. 246 (1976)); Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 335 (6th Cir. 1989) ("If a state implementation plan ... is approved by the EPA, its requirements become federal law and are fully enforceable in federal court.") (citing 42 U.S.C. § 7604(a); 1 W. Rodgers, Environmental Law: Air and Water §§ 3.9-3.11 (1986)); Communities for a Better Environment v. Cenco Refining Co., 180 F. Supp. 2d 1062, 1068 (C.D. Cal. 2001) ("Once approved by the EPA, the requirements and commitments of a SIP become binding as a matter of federal law upon the state.") (citing 42 U.S.C. § 7413(a)(2)); Save Our Health Organization v. Recomp of Minnesota, Inc., 829 F. Supp. 288, 291 (D. Minn. 1993) (ruling that plaintiff has a basis under the citizen suit provision of the CAA to challenge defendant's compliance with odor regulations incorporated into an EPA-approved state SIP).

• Plaintiff May Enforce the Approved SIP's December 1, 1998 Compliance Deadline and its Final Cutpoints

Defendants admitted, both at oral argument and in their pleadings, that they did not fully implement the final cutpoints by December 1, 1998, as required by the approved SIP. Complaint ¶ 22; Answer ¶ 22. Plaintiff may thus enforce the approve SIP's December 1, 1998 compliance deadline and its final cutpoints under § 7604 because defendants have violated "emission standards or limitations" under § 7604(f) that are "in effect under" the Act. Id. § 7604(a)(1)(A), (f). However, defendants attempt to avoid liability by arguing that genuine issues of material fact - defendants' projections of a high level of false vehicle emission inspection failure rates under the applicable final cutpoints for certain model year vehicles and the possibility for future EPA action - exist to preclude summary judgment. Defs.' Br. at 15. Specifically, defendants maintain that they chose not to implement the final cutpoints because the failure rates at the final cutpoints for 1995 and older vehicles are significantly higher than expected, and the only explanation for such a large increase in failure rates is a significant level of false failures, which ultimately require motorists to make unnecessary repairs and negatively impact the integrity of the enhanced I/M program. Defendants also point to a letter dated April 12, 2001, from Margo T. Oge, Director, Office of Transportation and Air Quality, in which the EPA "strongly advises Pennsylvania not to implement the existing final cutpoints for 1995 and older vehicles until . . . [EPA's] research is complete and final guidance is issued." In light of the EPA letter, defendants state that they have decided to await issuance of the study before implementation of the final cutpoints. Id. at 18. The Court concludes that such evidence is immaterial to the question of liability; it will, however, be considered in determining an appropriate remedy.