167 F.3d 641 (D.C. Cir. 1999), 97-1637, Environmental Defense Fund v. E.P.A.

Docket Nº:97-1637.
Citation:167 F.3d 641
Party Name:Envtl. ENVIRONMENTAL DEFENSE FUND, on behalf of itself and its members, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, in her capacity as Administrator of the United States Environmental Protection Agency, Respondents.
Case Date:March 02, 1999
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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167 F.3d 641 (D.C. Cir. 1999)


ENVIRONMENTAL DEFENSE FUND, on behalf of itself and its

members, Petitioners,



capacity as Administrator of the United States

Environmental Protection Agency, Respondents.

No. 97-1637.

United States Court of Appeals, District of Columbia Circuit

March 2, 1999

Argued Sept. 3, 1998.

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

Robert E. Yuhnke argued the cause and filed the briefs for petitioner.

Thomas A. Lorenzen, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Lois J. Schiffer, Assistant Attorney General, Karen L. Egbert, Attorney, U.S. Department of Justice, Sara Schneeberg, Attorney, Environmental Protection Agency, and Peter J. Plocki, Attorney, U.S. Department of Transportation.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge WILLIAMS.

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TATEL, Circuit Judge:

Petitioner challenges several provisions of the 1997 Final Rule issued by the Environmental Protection Agency pursuant to the 1990 amendments to the Clean Air Act. That statute prohibits a metropolitan planning organization from approving and the Department of Transportation from funding any transportation project unless it comes from a regional transportation plan and program that conform to applicable state-level air quality standards. Because the challenged "conformity" and "grandfather" regulations allow both local approval and federal funding of transportation projects that satisfy neither this requirement nor the single exception the statute permits, we hold that these regulatory provisions violate the Clean Air Act. In addition, we remand the regulations which allow conformity to be based on emissions budgets unapproved or disapproved by EPA for further proceedings to harmonize those regulations with the statute's general conformity requirements. Finally, we hold that the regulation which allows conformity to be based on revised budgets that include "safety margin" emissions violates the statute's requirement that conformity be evaluated against approved or applicable air quality standards.


The Clean Air Act establishes a joint state and federal program for regulating the nation's air quality. The Act requires EPA to establish National Ambient Air Quality Standards ("NAAQS") for various pollutants. See 42 U.S.C. § 7409 (1994). It also requires each state to adopt a State Implementation Plan (known as a "SIP") that "provides for implementation, maintenance, and enforcement of [NAAQS] in each air quality control region (or portion thereof) within such State." Id. § 7410(a)(1). SIPs must 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 NAAQS. Id. § 7410(a)(2)(A). "[A]fter reasonable notice and public hearings," each state must submit a SIP with such pollution control strategies to EPA. Id. § 7410(a)(1). EPA typically approves SIPs pursuant to notice-and-comment rulemaking.

In 1977, Congress amended the Clean Air Act to ensure that transportation planning at the local level conforms to pollution controls contained in approved SIPs. To accomplish this, the 1977 amendments prohibit federal agencies from assisting, approving, or supporting "any [transportation] activity which does not conform to [an applicable SIP]." Pub.L. No. 95-95, tit. I, sec. 129(b), § 176(c), 91 Stat. 745, 750 (1977).

Because Congress "offered little guidance" on the 1977 conformity requirement, and because federal agencies "largely ... ignored" it, Clean Air Conference Report, 136 Cong. Rec. 36,103, 36,105-06 (1990), Congress amended the Act again in 1990 to expand the content and scope of this requirement. See Pub.L. No. 101-549, tit. I, sec. 101(f), 110(4), § 176(c), 104 Stat. 2409, 2470 (1990) (codified at 42 U.S.C. § 7506(c)). The focus of this case, the 1990 amendments do two things. First, they establish general criteria for determining whether a transportation activity conforms to a SIP:

(1) .... Conformity to an implementation plan means--

(A) conformity to an implementation plan's purpose of eliminating or reducing the severity and number of violations of the national ambient air quality standards and achieving expeditious attainment of such standards; and

(B) that such activities will not--

(i) cause or contribute to any new violation of any standard in any area;

(ii) increase the frequency or severity of any existing violation of any standard in any area; or

(iii) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.

42 U.S.C. § 7506(c)(1). Heads of federal agencies have "an affirmative responsibility" to assure conformity of any federally assisted or approved activity to an applicable SIP. Id.

Second, the 1990 amendments integrate the attainment and maintenance of air quality

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standards with the specific transportation planning process prescribed by the Urban Mass Transportation Act. As the Clean Air Conference Report put it, "[t]he purpose of the new 'conformity' requirement is to ensure that the transportation systems choices made by the community and incorporated into the regional transportation plan required by [federal transportation statutes] are consistent with achieving the allowable emission targets for each pollutant assigned to mobile sources in the SIP." 136 Cong. Rec. at 36,106 col.2. Under the Urban Mass Transportation Act, the governor of each state, in agreement with local officials, must designate a metropolitan planning organization (known as an "MPO") for each urban area with more than 50,000 people. See 49 U.S.C.A. § 5303(c)(1). The MPO plans for the transportation needs of that area. It develops a long range transportation plan (referred to in the statute as a "plan") which specifies the facilities, services, financing techniques, and management policies that will comprise the area's transportation system over a 20-year period, see id. § 5303(f), as well as a short-term transportation improvement program (referred to in the statute as a "program" and in the regulations as a "TIP") which identifies and prioritizes the specific transportation projects to be carried out over the next three years, see id. § 5304(b). The heart of the Clean Air Act's 1990 conformity requirements consists of the following restrictions on approval and funding of transportation plans, programs, and projects:

(2) Any transportation plan or program developed pursuant to Title 23 or the Urban Mass Transportation Act shall implement the transportation provisions of any applicable implementation plan ... applicable to all or part of the area covered by such transportation plan or program. No Federal agency may approve, accept or fund any transportation plan, program or project unless such plan, program or project has been found to conform to any applicable implementation plan in effect under this chapter. In particular--

(A) no transportation plan or transportation improvement program may be adopted by a [MPO], or be found to be in conformity by a [MPO] until a final determination has been made that emissions expected from implementation of such plans and programs are consistent with estimates of emissions from motor vehicles and necessary emissions reductions contained in the applicable implementation plan ...;

. . . . .

(C) a transportation project may be adopted or approved by a [MPO] or any recipient of funds designated under Title 23 or the Urban Mass Transportation Act, or found in conformity by a [MPO] or approved, accepted, or funded by the Department of Transportation only if it meets either the requirements of subparagraph (D) or the following requirements--

(i) such a project comes from a conforming plan and program;

. . . . .

* * *

(D) Any project not referred to in subparagraph (C) shall be treated as conforming to the applicable implementation plan only if it is demonstrated that the projected emissions from such project, when considered together with emissions projected for the conforming transportation plans and programs within the nonattainment area, do not cause such plans and programs to exceed the emission reduction projections and schedules assigned to such plans and programs in the applicable implementation plan.

42 U.S.C. § 7506(c)(2). According to the Agency, these provisions apply only to "nonattainment" areas (i.e., areas that have not met an air quality standard for a particular pollutant) and to "maintenance" areas (i.e., former nonattainment areas that have met the appropriate standard). See 40 C.F.R. §§ 93.101, 93.102(b) (1998).

In addition to specifying general conformity criteria and imposing restrictions on regional transportation planning, the 1990 amendments establish conformity criteria that apply to transportation plans, programs, and projects prior to Agency approval of a submitted SIP. See 42 U.S.C. § 7506(c)(3).

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The amended Act also authorizes EPA to promulgate criteria and procedures for determining conformity, provided that "in no case shall [conformity] determinations for transportation plans and programs be less frequent than every three years." Id. § 7506(c)(4)(B)(ii).

EPA first issued criteria and procedures for making conformity determinations in 1993. See 58 Fed.Reg. 62,188 (1993). It then amended those procedures in a series of rulemakings. See 60 Fed.Reg. 40,098 (1995); 60 Fed.Reg. 57,179 (1995). In recent years, this court has heard two challenges to these amended rules. See Sierra Club v. EPA, 129 F.3d 137 (D.C.Cir.1997) (invalidating one-year exemption from statutory conformity requirements for...

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