Southern California's quest for clean air: is EPA's dilemma nearing an end?

• Author: Wang, Alexander K.

"The challenge EPA confronts in ridding the South Coast of dirty air, then, may make Hercules, labors in the Augean Stables seem like light housekeeping."(1)

1. Introduction

   To many people, southern California is synonymous with smog. The region's South Coast Air Basin (Basin), which encompasses 6600 square miles within central southern California,(2) is burdened with the worst air quality in the nation. The Basin,s ozone levels are the highest in the nation, and its carbon monoxide problem is "possibly the worst . . . of any urban area in the United States."(3) In Coalition for Clean Air v. Southern California Edison Co.,(4) the Ninth Circuit ruled that the enactment of the Clean Air Act Amendments of 1990 did not relieve the U.S. Environmental Protection Agency (EPA) from a prior court order to promulgate a federal implementation plan (FIP) for the Basin. This Comment examines the background behind the case and California's attempts to comply with the Clean Air Act, and suggests that EPA should follow a flexible approach in designing its FIP.

2. History of EPA's Role in Southern California

   Although federal legislation of air pollution began in 1955,(5) the federal government's role in controlling air pollution dramatically increased with the passage of the Clean Air Act Amendments of 1970 (CAA).(6) The 1970 Amendments required EPA to establish National Ambient Air Quality Standards (NAAQS) for any air pollutants that could be harmful to the health and welfare of the public.(7) EPA established NAAQS for six pollutants in 1971, include ozone and carbon monoxide.(8) The 1970 Amendments also directed states to design State Implementation Plans (SIPs) to assure the implementation, maintenance, and enforcement of the NAAQS within each state.(9) To ensure that states would conscientiously assume their duties, the 1970 Amendments also required EPA to promulgate a federal implementation plan (FIP) if it disapproved proved a SIP or if the state failed to promulgate a SIP.(10)

   Since the enactment of the 1970 Amendments, California has been unable to produce a SIP satisfying the requirements of the CAA. The chronology of events from 1972 until the Southern California Edison decision details the difficulties that both California and EPA have encountered in attempting to arrive at a workable solution for regulating the Basin's air pollution sources. In February 1972, California submitted its first SIP, which EPA disapproved in May 1972.(11) After EPA failed to promulgate a FIP for the Basin, the district court in City of Riverside v. Ruckelshaus ordered EPA to produce a FIP for the Basin by January 15, 1973.(12) EPA responded to the order by proposing a variety of control measures, including gasoline rationing, surcharges on commercial parking rates, and mandatory carpool and bus lanes on both freeway and surface streets, but the high level of public disapproval to the proposals caused EPA to withdraw its plan in 1976.(13)

   Congress recognized that many states were experiencing difficulties in attaining NAAQS and amended the Clean Air Act in 1977 to extend the attainment deadlines until 1982.(14) States that demonstrated an inability to comply with the 1982 deadline, despite the implementation of all reasonably available control measures, qualified for an extension until 1987.(15) California submitted a SIP on July 25, 1979, and requested an extension for the carbon monoxide and ozone deadlines.(16) On January 21, 1981, EPA disapproved the carbon monoxide and ozone SIPS because California failed to incorporate a vehicle inspection and maintenance program gram into its SIP.(17) In 1982, California submitted revisions to its carbon monoxide and ozone SIPS, but because it acknowledged that these revisions would not ensure attainment of the NAAQS by December 31, 1987, EPA proposed to disapprove the SIP on February 3, 1983.(18) However, on July 30, 1984, after California sub@ additional revisions, EPA approved the ozone and carbon monoxide SIPS even though it lacked proof that the SIPS would assure attainment of the NAAQS by the deadline.(19)

   On November 3, 1987, in Abramowitz v. EPA, the Ninth Circuit held that EPA exceeded its authority in approving California's SIPS without determining if the control measures would produce attainment by the 1987 deadline.(20) The court ordered EPA to disapprove approve the relevant portions of the SIP and to "face up to implementing the measures which are to be triggered by failure to meet attainment requirements."(21) EPA disapproved the Basin's carbon monoxide and ozone SIPS on January 22, 1988.(22) The Coalition for Clean Air and the Sierra Club then filed suit on February 22, 1988 to compel EPA to meet its statutory obligation of promulgate an ozone and carbon monoxide FIP for the Basin.(23) EPA and the citizen groups entered into a settlement agreement in March, 1989, which required EPA to promulgate a FIP.(24) On September 5, 1990, EPA published a proposed FIP and prepared to finalize it on February 28, 1991.(25). Meanwhile, EPA also sought legislative relief from its obligation to promulgate FIPs. EPA persuaded the Senate to pass an amendment in September 1989 that would have left the promulgation of FIPS to EPA's discretion, but this provision ultimately died in a House Committee.(26) Thus, EPA's man@ date to promulgate a FIP upon disapproval of a SIP was retained in the Clean Air Act Amendments of the NAAQS by the deadline.(19)

   On November 30, 1991, fifteen days after enactment of the Clean Air Act Amendments of 1990, EPA filed a motion in district court to vacate the settlement agreement where EPA agreed to promulgate a FIP.(28) The district court agreed with EPA that Congress, by enacting the Clean Air Act Amendments of 1990, intended to relieve EPA from the duty of promulgating a FIP for the Basin until such time as California had prepared a new SIP in accordance with the new criteria and timetables of the LEO Amendments, and until EPA had rejected the new SIP.(29) The court reasoned that any other result was anomalous in light of the policy of the Clean Air Act that "the States are encouraged to take the lead"(30) because "the SIP prepared by the State under the former criteria and rejected is to be replaced by a FIP prepared under new criteria that the State has never had an opportunity to address.(31) The court granted EPA's motion to vacate the settlement agreement and dismissed the case.(32) The plaintiffs appealed.

3. Coalition for Clean Air v. Southern

   California Edison Co.

   In Coalition for Clean Air v. Southern California Edison Co.,(33) the Ninth Circuit Court of Appeals reversed the district court in a two-to-one decision. The court ruled that EPA's obligation to promulgate a FIP for the Basin was not affected by the enactment of the Clean Air Act Amendments of 1990.(34) The Ninth Circuit remanded to the district court with instructions to reinstate the settlement agreement and establish an "expeditious schedule" for the final promulgation of a FIP.(35)

   Plaintiffs argued that the amended language of the Clean Air Act did not relieve EPA of its duty to promulgate the FIP for the Basin, and argued in the alternative that the Clean Air Act Amendments, savings clause, preserved EPA's duty to promulgate the FIP.(36) The court decided the case solely upon the first argument.(37) The 1990 amendments modify section 110(c)(1) of the Clean Air Act to read.

   The Administrator shall promulgate a Federal implementation plan at any time within @ years after the Administrator

   (A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under section 7410(k)(1)(A) of this title, or

   (B) disapproves a State implementation plan submission in whole or in part, unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.(38)

   The court found this language conditioned EPA's duty to generate a FIP upon a SIP disapproval only in general terms; EPA's obligation was not limited to the "disapproval of newly submitted' SIPs or SIPs |submitted under the 1990 Amendments.'"(39) As a result, EPA was required to promulgate FIPs by 1990 based on its disapproval of the Basin's SIPS in 1988.

   The court noted that the word "shall", in section 110(c)(1) states EPA's obligations in the future tense, but explained that "shall" refers to two years from any triggering event, in section 110(c)(1), not "two years from enactment of the 1990 Amendments."(40) The court acknowledged that since section 110(k)(1)(A) was added by the 1990 Amendments, EPA's duties upon the disapproval of a SIP could only be triggered after the enactment of the 1990 Amendments.(41) The court reasoned, however, that the other triggering events were not temporally limited, but could occur "in the past or in the future."(42)

   EPA unsuccessfully argued that the statute's present tense use of "disapproves, did not refer to prior disapprovals.(43) The court noted that the amended Clean Air Act also uses the present tense in establishing criminal liability, but "clearly the 1990 Amendments do not forgive criminal violations that occurred prior to the Amendments just because Congress speaks in the present tense."(44) The Ninth Circuit reasoned that Congress used the present tense word |disapproves' because it did not wish to limit section 110(c)(1)(B)'s reach to either past or future disapprovals,"(45)

   The dissenting opinion argued that subsection (A) should not be ignored in interpreting subsection (B), because the 1990 Amendments added section 110(k)(1)(A) as a new triggering event.(46) The majority, however, found that...