Case summaries.

1. ENVIRONMENTAL QUALITY

   1. Clean Air Act

      1. Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission, 366 F.3d 692 (9th Cir. 2004).

         The Metropolitan Transportation Commission (MTC), which plans, coordinates, and finances regional transportation in the San Francisco Bay Area, appealed a summary judgment (1) and preliminary injunction (2) issued by the district court in favor of Bayview Hunters Point Community Advocates and seven other community and environmental organizations (collectively Bayview). Bayview had filed a citizen suit pursuant to the Clean Air Act (CAA) (3) against MTC and two local transit providers, alleging noncompliance with a provision of the CAA mandated State Implementation Plan (SIP). (4) The Ninth Circuit reversed the district court's judgment and injunction, finding that MTC was in compliance with the relevant provisions of the SIP.

         The CAA requires each state to adopt a SIP to satisfy National Ambient Air Quality Standards (NAAQS) set by the Environmental Protection Agency (EPA). (5) Each SIP must include enforceable measures and timetables for compliance with NAAQS. (6) MTC is responsible for developing Transportation Control Measures (TCMs) aimed at reducing hydrocarbon and carbon monoxide emissions within the San Francisco Bay Area as part of the 1982 SIP. One of these measures, TCM-2, dealt with transit ridership levels, and projected air quality improvements associated with a 15% increase in transit ridership from 1982 levels. After several revisions to the 1982 SIP, TCM-2 remained in the document. However, as of 2001, ridership levels only increased by 12.5% over 1982 levels. As a result, Bayview filed a citizen suit, as authorized by the CAA, to compel MTC to take further measures to reach the 15% ridership increase. (7)

         The district court found that TCM-2 imposed five separate requirements: 1) adoption of five-year plans by the region's major transit operators, 2) adoption by MTC of an overall transit ridership target, 3) implementation of the five-year plans, 4) monitoring of annual ridership gains, and 5) achievement of a 15% transit ridership increase over 1982 levels. The district court concluded that MTC had not met the final 15% transit ridership increase requirement and issued a permanent injunction against MTC, requiring the agency to meet the 15% increase requirement by 2006 and amend its regional transportation plan to specify how it would achieve the transit ridership increase. (8)

         The issue facing the Ninth Circuit on appeal was whether TCM-2 constituted a binding commitment to achieve the 15% increase in public transit ridership. The court began with an analysis of the plain language of TCM-2. It noted that the 15% ridership increase was described as a "target," and that the document did not contain an explicit requirement that the target be achieved. (9) Turning to contract law, the court determined that "a promise must be distinguished from ... a mere prediction of future events." (10) The Ninth Circuit decided the lack of plain language requiring the 15% transit ridership increase "weighs heavily against the conclusion that such an obligation can be imposed based upon TCM-2." (11)

         The Ninth Circuit held that the lack of a clear requirement to attain the 15% transit ridership increase was logical, since such a ridership increase was not within MTC's control, unlike the other four requirements the district court found in TCM-2. The 15% transit ridership increase was dependent upon outside factors such as changing work patterns or individual preferences in relation to public transit, and thus the Ninth Circuit concluded that TCM-2 could not have been intended to impose the 15% transit ridership target as a binding obligation.

         The Ninth Circuit then looked more closely at the other provisions of TCM-2 and applied a "basic rule of statutory construction ... that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless." (12) The court understood the other provisions of TCM-2 to mean MTC should meet the 15% transit ridership increase target through improvements in productivity without further substantial investment. However, the Ninth Circuit thought the district court's injunction would require MTC to take quite different measures, focusing on significant and expensive transit expansion programs. The Ninth Circuit held that such a requirement rendered the 15% provision inconsistent with the other TCM-2 provisions by essentially removing any limitation on the cost of implementing the TCMs.

         The Ninth Circuit next looked at whether the 15% ridership increase constituted a specific SIP strategy, or an overall objective or aspirational goal of the SIP. While strategies in CAA implementation plans can be enforced by court order, objectives and goals cannot. (13) Although the first four requirements found by the district court were clearly enforceable strategies, the Ninth Circuit held that the 15% transit ridership increase target was a proxy for the emissions reduction goal, and thus unenforceable by a court.

         The Ninth Circuit also rejected the district court's determination that "failure to infer an increased ridership obligation would render TCM-2 virtually meaningless." (14) The Ninth Circuit pointed out that in the early 1990's MTC had in fact adopted a number of contingency TCMs to address insufficient reductions in emissions necessary to attain NAAQS which, while not increasing transit ridership, had resulted in attainment of overall emissions reduction levels during this period by positively affecting other facets of transportation. (15) When the San Francisco Bay Area later fell out of attainment for the ozone NAAQS, the court noted that MTC and other responsible agencies prepared a revised SIP to address the problem. The Ninth Circuit held that the district court had failed to consider this broader regulatory aspect when narrowing in on the failure to achieve the transit ridership increase goal.

         The Ninth Circuit held that citizen suits, such as the one brought by Bayview, are appropriate "to enforce specific measures, strategies or commitments designed to ensure compliance with the NAAQS," (16) not to "obtain modification of an SIP to conform with [the citizen group's] own notion of a proper environmental policy." (17) The court noted that the remedy when an agency falls to achieve overall emissions reductions comes from new TCMs and new strategies, not the alteration of TCM-2's provisions sought by Bayview.

         Finally, the Ninth Circuit dismissed the persuasiveness of an EPA opinion letter agreeing with Bayview's contention that TCM-2 would not be fully implemented until the transit ridership goal of a 15% increase over 1982 levels was met. The court determined the EPA opinion letter would be persuasive only in an ambiguous regulatory situation. (18) The Ninth Circuit held that the plain meaning of the SIP was contrary to EPA's opinion letter, and thus the letter was not entitled to deference. (19)

         In conclusion, the Ninth Circuit reversed the district court's summary judgment and permanent injunction in favor of Bayview. The Ninth Circuit held that MTC had met its obligations to increase transit productivity under TCM-2 even though these strategies had not yielded the desired increase in transit ridership.

         Judge Thomas dissented from the majority's opinion and would have affirmed

         the district court's decision. Judge Thomas emphasized the CAA requirement that SIPs be submitted to EPA in an "enforceable form." Therefore, the 15% ridership increase provision, if not binding, was a violation of the CAA. (20) Judge Thomas believed that without the 15% ridership increase provision, the remaining strategies were "too attenuated and amorphous" to be realistically enforceable. (21) He noted that local agencies would take advantage of a failure to hold them accountable to their goals by "defin[ing] their commitments as vaguely as possible in order to avoid constraint and reform." (22)

      2. Grand Canyon Trust v. Tucson Electric Power Co., 391 F.3d 979 (9th Cir. 2004).

         The Grand Canyon Trust (Trust) appealed from a district court order granting partial summary judgment on the merits and final summary judgment based on laches to the Tucson Electric Power Company (Tucson Power). Trust had brought an action alleging that Tucson Power violated the Clean Air Act (CAA) (23) by constructing and operating a coal-powered electric plant near Springervine, Arizona. The Ninth Circuit vacated the district court orders for partial and final summary judgment in favor of Tucson Power and remanded with instructions to reconsider Tucson Power's motions based on all properly submitted evidence. The Ninth Circuit also denied Tucson Power's motion to strike the Trust's appeal of the award of partial summary judgment as an unappealable interlocutory order.

         In late 1977, Congress amended the CAA to require all new sources of air pollution to implement Best Available Control Technology (BACT) standards. (24) Under regulations issued by the Environmental Protection Agency (EPA), facilities that commenced construction prior to March 19, 1979 were not subject to BACT requirements, provided that construction was not discontinued for longer than eighteen months and construction was completed within a reasonable time. (25) If, however, construction did not meet the requirements of either commencement within eighteen months or completion within a reasonable time, or if construction was suspended for more than eighteen months, a permit would automatically be invalidated, unless the administrator approved an extension. (26)

         In 1977, Tucson Power applied for a permit to construct two coal-fired power units. The first of these units was ultimately completed in 1985 and the second was completed in 1990. In 2001, Tucson Power announced a plan to build two additional...