Transportation planning and the Clean Air Act.

• Author: Mitchell, Alan L.

1. Introduction

   Of all life's necessities, air is the one that people partake of most directly. Water can be filtered and food can be cleaned or grown organically, but we breath everything that we emit into the atmosphere.(1) Of all the sources of air pollution, western society is arguably most strongly attached to the motor vehicle. Unfortunately, mobile source emissions such as motor vehicles account for most of the ozone and carbon monoxide pollution in urban areas.(2) Therefore, reducing the negative impact of vehicle use upon air quality is of paramount importance.

   Cleaning up individual vehicle emissions or decreasing overall vehicle impact through means such as reducing the number of vehicles in use can reduce the impact of mobile source emissions. The Clean Air Act (CAA)(3) embodies both of these options. Title I(4) of the Act contains provisions for planning by state and local governments to reduce vehicle impact while maintaining mobility, and Title II(5) addresses vehicle emissions reductions. This Chapter focuses on the transportation planning aspects of Title I; specifically, it examines the CAA's impact on transportation planning issues and how courts have addressed challenges to state and agency transportation planning actions.

   Transportation planning must balance the need for effective movement of people and goods with society's desire to maintain and even improve present air quality. The CAA attempts to achieve this balance by providing goals and procedures for achieving air quality improvements. However, the CAA's procedural and substantive complexity as well as the uncertain efficacy of challenges to state and agency actions have generated much uncertainty and confusion. While the CAA promises protection and enhancement of air quality, case law reflects a history of noncompliance and litigation. Two recent Ninth Circuit cases, McCarthy v. Thomas(6) and Trustees for Alaska v. Fink,(7) exemplify some of the difficulties encountered with enforcement of CAA requirements for transportation.

   McCarthy was a sequel to Delaney v. EPA,(8) in which the Ninth Circuit found the Environmental Protection Agency's (EPA) approval of the Tucson and Phoenix transportation control plans to be arbitrary and capricious(9) and ordered EPA to begin promulgation of a Federal Implementation Plan (FIP).(10) In McCarthy, the plaintiffs argued that Arizona was not enacting the State Implementation Plan (SIP)(11) revisions that the state had proposed in response to the threatened FIP,(12) and the Ninth Circuit agreed. The court held that the cities involved were required to implement the mass transit improvements promised by the Arizona SIP,(13) and ordered the district court to fashion an appropriate remedy.(14) McCarthy and Delaney suggested that the Ninth Circuit would require states to fully comply with the CAA's substantive goals. Such a requirement would comport with Congress's intent that the CAA's substantive goals be paramount.(15)

   On the other hand, in Trustees for Alaska, the Ninth Circuit allowed the City of Anchorage to condition its promise to implement mass transit improvements upon funding availability.(16) In addition, because the plaintiffs had failed to prove that the city's attempts to locate funding were unreasonable, the court refused to find that Anchorage was in violation of its CAA implementation plan.(17) In essence, the Ninth Circuit's decision in Trustees for Alaska permitted Anchorage to use lack of funding as an excuse for not implementing the mass transit expansion that was part of Alaska's SIP under the CAA. The Trustees for Alaska decision represents a potential departure from enforcement of CAA substantive goals in that it implies that the CAA's mandate for enforceability can be conditioned upon good faith efforts to secure funds. To date, no other circuit interprets the CAA to permit a state or city to condition its SEP commitments upon funding availability.

   This Chapter discusses transportation issues under the CAA and focuses upon those sections of the Act that are most relevant to the Trustees for Alaska decision. Part II analyzes the relevant portions of the CAA, focusing on changes included in the 1990 amendments. Part III examines the language of the CAA and analyzes the interpretation of that language by various courts. Part IV concludes that EPA should issue regulations to prevent states from conditioning CAA compliance on funding availability.

2. Transportation Planning Under the CAA

   The central mechanism for implementing the CAA's substantive transportation planning goals is the State Implementation Plan (SIP) program.(18) Approval of a SIP by EPA is a lengthy process that has changed and expanded with the various CAA amendments. Understanding how the SIP program works is a prerequisite to examining the role and efficacy of the courts in enforcing the CAA's substantive goals.

   1. History of the CAA

      The CAA is one of the United States' most complex pieces of environmental legislation.(19) It has spawned innumerable lawsuits, and Congress has repeatedly amended it in attempts to address the difficulties encountered in implementing its mandates.(20) The CAA's stated purpose is to control air pollution.21 Congress first enacted the CAA in 1955(22) and amended it in 1963,(23) 1967,(24) and 1970.(25) The 1970 amendments, which established the basic structure of the modern CAA, set out a new and unique relationship between the federal government and the States.(26) This relationship gave EPA authority to establish nationwide air quality standards and to enforce those standards if states failed to do so.(27) However, Congress expressly gave states the primary role in designing and effectuating SIPs to achieve the national standards.(28) The 1970 amendments also required states to meet specific attainment deadlines in achieving the air quality Standards.(29)

      When states failed to meet the 1970 amendment deadlines, Congress amended the CAA again in 1977.(30) These amendments included new attainment deadline requirements in a new Part D of Title I.(31) Part D required states to promulgate detailed SIPs that would provide for full attainment of the national ambient air quality standards (NAAQS) by certain dates.(32) However, not all states complied with the new deadlines,(33) and Congress began debating further amendments.(34) Congress passed new amendments in 1990 in an attempt to resolve the compliance difficulties while still providing for enforcement of the CAA's air pollution reduction goal.35 The 1990 amendments include revisions of the SIP program and new requirements for those areas failing to meet the schedulies of the 1977 amendments.(36) The 1990 amendments also include sanctions against states failing to meet attainment deadlines.(37)

   2. CAA Provisions

      Three parts of the CAA contain the majority(38) of its transportation planning requirements: NAAQS,(39) the SIP program,(40) and the requirements for nonattainment areas.(41)

      1. National Ambient Air Quality Standards

         The CAA requires EPA to promulgate NAAQS for protection of public health(42) and public welfare,(43) also termed primary and secondary standards, respectively. NAAQS are levels of air pollutants that EPA establishes having adverse effects on public health or welfare.(44) The agency promulgates the standards using notice-and-comment rulemaking(45) and is able to revise them as necessary using the same procedures.(46) If a pollutant satisfies the CAA's criteria, EPA cannot decline to promulgate a standard for that pollutant.(47) EPA cannot consider economic cost(48) or technological feasibility(49) when promulgating NAAQS. Once EPA establishes a standard for a particular pollutant, a state's SEP must comply with it.50 Currently, NAAQS exist for carbon monoxide, ozone, nitrogen dioxide, particulate matter, sulfur oxides, and lead.(51) The Code of Federal Regulations lists the primary and secondary NAAQS.(52)

      2. State Implementation Plans

         SIPs are the central focus of the CAA. SIPs involve a very complex process that has led to many problems.(53) The CAA requires each state to promulgate a SIP that provides for the 'implementation, maintenance, and enforcement" of the NAAQS.(54) Each SIP must be submitted for EPA approval; if a SIP meets the CAA's procedural and substantive requirements, EPA must approve it.(55) The CAA's 1990 amendments stipulate that EPA cannot approve a SIP until EPA completes a detailed completeness review.(56) The completeness review process and other substantive and procedural regulations promulgated by EPA allow the agency extensive control over the design and approval of SIPs. While EPA's regulations and interpretations often receive judicial deference,(57) there are limits to EPA's control over SIP proposals. For example, EPA cannot attach additional requirements to a SIP proposal or partially approve a SIP if doing so would impair the CAA's substantive goals.(58) If a state fails to submit a SIP or if EPA or a court finds the SIP proposal inadequate, then EPA must promulgate a Federal Implementation Plan (FIP) for that state.(59) However, EPA has resisted promulgating FIPs, preferring instead to grant partial approvals, conditional approvals, and even extensions.(60)

         EPA's power to grant conditional approval of SIP proposals is important, because it provides the agency flexibility in approving SIPs.(61) For example, a state may find it difficult to meet the CAA's strict deadlines because the SIP approval process is so complex. Thus, EPA may use a conditional approval to continue working with that state and avoid having to reject the state's SIP proposal.(62) EPA also has the power to grant conditional approval of SIPS that are substantially conforming but lack certain minor details required for complete approval.(63) EPA has granted such conditional approvals when a SIP lacked such details as submission of a more refined inventory of pollutant sources,(64) promulgation of certain...