129 F.3d 137 (D.C. Cir. 1997), 96-1007, Sierra Club v. E.P.A.

Docket Nº:96-1007.
Citation:129 F.3d 137
Party Name:Envtl. SIERRA CLUB, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents.
Case Date:November 04, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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129 F.3d 137 (D.C. Cir. 1997)


SIERRA CLUB, Petitioner,



No. 96-1007.

United States Court of Appeals, District of Columbia Circuit

November 4, 1997

Argued Sept. 29, 1997.

On Petition for Review of an Order of the Environmental Protection Agency.

Howard I. Fox, Washington, DC, argued the cause for petitioner, with whom Robert E. Yuhnke was on the briefs. William S. Curtiss entered an appearance.

Eileen T. McDonough, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for respondents, with whom Lois J. Schiffer, Assistant Attorney General, Sara Schneeberg, Attorney, Environmental Protection Agency, and Peter J. Plocki, Attorney, U.S. Department of Transportation, were on the brief.

Before: EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Chief Judge:

Section 176(c) of the Clean Air Act, as amended in 1990, provides that, before any transportation project, program, or plan ("transportation activities") located in air quality regions designated as "nonattainment areas" or "maintenance areas" can receive federal approval or funding, the transportation activity must be found to conform with the applicable State Implementation Plan ("SIP") or, if a SIP is not yet available for the region in question, with interim requirements. 42 U.S.C. § 7506(c) (1994 & Supp.1995)

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. Appellant Sierra Club challenges a regulation promulgated by the Administrator of the Environmental Protection Agency ("EPA") providing for a twelve-month grace period during which transportation activities in designated nonattainment areas would be exempt from the transportation conformity requirements. See 60 Fed.Reg. 57,179 (1995); see also 40 C.F.R. § 51.394(d) (1996).

We hold that the challenged grace period is contrary to the plain meaning of the Clean Air Act. The Clean Air Act categorically mandates that the transportation conformity requirements shall apply to nonattainment and maintenance areas. 42 U.S.C. § 7506(c)(5) (Supp.1995). The Act does not provide for any grace periods or other exemptions from the conformity requirements for areas designated as nonattainment areas, nor does it authorize the EPA to create such exemptions. Thus, the grace period unlawfully narrows the Act's strict and broad ban against nonconforming transportation activities.


The Clean Air Act establishes a joint state and federal program to control the nation's air pollution. Section 109 of the Act requires the EPA to establish National Ambient Air Quality Standards ("NAAQS") for certain pollutants. 42 U.S.C. § 7409 (1994). Section 110 contemplates that the measures necessary to attain the NAAQS will be applied to individual sources of pollutants through SIPs, prepared by each state and subject to EPA review and approval, for each "air quality control region" within the state. § 7410. A SIP must specify emission limitations and other measures necessary to attain and maintain the NAAQS for each pollutant. § 7410(a)(2)(A)-(K).

Section 107(d)(1)(A) of the Act requires the Governor of each state to designate each air quality control region in the state as either: (1) nonattainment--the area does not meet the NAAQS or it contributes to ambient air quality in a nearby area that does not meet the NAAQS; (2) attainment--the area meets the NAAQS and does not contribute to NAAQS violations in nearby areas; or (3) unclassifiable--there is not sufficient information available for classification. § 7407(d)(1)(A). The EPA must establish the earliest practicable attainment date for each nonattainment area, § 7502(a)(2), as well as a schedule by which the state must submit a SIP revision that complies with the requirements for nonattainment areas in order to attain the NAAQS ("control strategy"). § 7502(b), (c). Section 107(d)(3) establishes a process for redesignation to reflect changes in air quality over time. § 7407(d)(3). Redesignation requires notice in the Federal Register announcing the pending redesignation. § 7407(d)(2)(A). If a nonattainment area is found to have attained the NAAQS, it is redesignated as a "maintenance" area and must comply with a control strategy designed to maintain compliance with the NAAQS. § 7505a.

In the 1970 Act, Congress required SIPs to include "transportation control plans" as part of their strategy for achieving or maintaining attainment. Pub.L. No. 91-604 § 4(a), 84 Stat. 1680 (1970). In 1977, Congress prescribed more stringent transportation conformity requirements, including section 176(c), which provides that federal agencies may not "engage in," "support in any way or provide financial assistance for," "license or permit," or "approve" any transportation activity that does not "conform to" applicable SIPs. Pub.L. No. 95-95, tit. I § 129(b), 91 Stat. 749, 750 (1977). Congress further strengthened the Act's transportation conformity requirements in 1990. Pub.L. No. 101-549, tit. I § 101(f), 104 Stat. 2409, 2409-12 (1990). Section 176(c), as amended, integrates the Clean Air Act with the transportation planning process by conditioning federal approval and funding of transportation activities on their demonstrated compliance with applicable SIPs. 42 U.S.C. § 7506(c)(1) (1994). Prior to approval of applicable SIP control strategies, transportation activities must comply with interim requirements by showing that the proposed activity will contribute to emissions reductions. § 7506(c)(3).

In 1993, the EPA promulgated regulations establishing detailed "criteria and procedures for determining conformity under the statute." See 58 Fed.Reg. 62,188 (1993) (codified

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at 40 C.F.R. §§ 51.390-51.464 (1996)); see also 42 U.S.C. § 7506(c)(4) (1994) (requiring EPA to promulgate regulations). In 1995, the EPA promulgated amendments to these...

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