22 F.3d 1125 (D.C. Cir. 1994), 92-1535, Natural Resources Defense Council, Inc. v. E.P.A.

Docket Nº:92-1535, 92-1596, 93-1004 and 92-1630.
Citation:22 F.3d 1125
Party Name:24 Envtl. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, EPA, Respondents. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, EPA, Respondents, Alabama Power Company; Appalachian Power Company; Baltimore
Case Date:May 06, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 1125

22 F.3d 1125 (D.C. Cir. 1994)

24 Envtl.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,

Administrator, EPA, Respondents.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,

Administrator, EPA, Respondents,

Alabama Power Company; Appalachian Power Company;

Baltimore Gas and Electric Company; Boston Edison Company;

Carolina Power and Light Company; Centerior Energy

Corporation; Cleveland Electric Illumination Company;

Public Service Company of Oklahoma; Southwestern Electric

Power Company; West Texas Utilities Company; Central

Hudson Gas & Electric Corporation; Central Illinois Light

Company; Central Illinois Public Service Company;

Cincinnati Gas & Electric Company; Columbus Southern Power

Company; Consolidated Edison Company of New York, Inc.;

Commonwealth Edison Company; Consumers Power Company;

Dayton Power and Light Company; Delmarva Power & Light

Company; Detroit Edison Company; Duke Power Company;

Duquesne Light Company; Florida Power & Light Company;

Florida Power Corporation; Georgia Power Company; Gulf

Power Company; Illinois Power Company; Indiana Michigan

Power Company; Indianapolis Power & Light Company;

Jacksonville Electric Authority; Kansas City Power & Light

Company; Kentucky Power Company; Kentucky Utilities

Company; Long Island Lighting Company; Louisville Gas and

Electric Company; Madison Gas and Electric Company;

Midwest Power Systems, Inc.; Minnesota Power Company;

Mississippi Power Company; Monongahela Power Company;

Montaup Electric Company; New England Power Company; New

York State Electric & Gas Corporation; Niagara Mohawk Power

Corporation; Northern Indiana Public Service Company;

Oglethorpe Power Corporation; Ohio Edison Company;

Pennsylvania Power Company; Ohio Power Company; Ohio

Valley Electric Corporation; Oklahoma Gas and Electric

Company; Pacificorp Electric Operations; Pennsylvania

Power & Light Company; Philadelphia Electric Company; The

Potomac Edison Company; Potomac Electric Power Company;

PSI Energy, Inc.; Public Service Company of New Mexico;

Public Service Electric & Gas Company; South Carolina

Electric & Gas Company; Southern California Edison Company;

Tampa Electric Company; Tucson Electric Power Company;

Union Electric Company; Virginia Power; West Penn Power

Company; Wisconsin Electric Power Company; Wisconsin

Public Service Corporation; Edison Electric Institute;

National Rural Electric Cooperative Association; American

Public Power Association; Toledo Edison Company; Central

and South West Service, Inc.; Central Power and Light

Company, Intervenors.

NATIONAL AUTOMOBILE DEALERS ASSOCIATION; California Motor

Car Dealers Association; New Jersey Automobile

Dealers Association, Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,

Administrator, EPA, Respondents,

Envirotest Systems Corporation, Intervenor.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,

Administrator, EPA, Respondents,

Alabama Power Company; Appalachian Power Company;

Baltimore Gas and Electric Company; Boston Edison Company;

Carolina Power and Light Company; Centerior Energy

Corporation; Cleveland Electric Illumination Company;

Toledo Edison Company; Central and South West Service,

Inc.; Central Power and Light Company, Public Service

Company of Oklahoma; Southwestern Electric Power Company;

West Texas Utilities Company; Central Hudson Gas & Electric

Corporation; Central Illinois Light Company; Central

Illinois Public Service Company; Cincinnati Gas & Electric

Company; Columbus Southern Power Company; Commonwealth

Edison Company; Consolidated Edison Company of New York,

Inc.; Consumers Power Company; Dayton Power and Light

Company; Delmarva Power & Light Company; Detroit Edison

Company; Duke Power Company; Duquesne Light Company;

Florida Power & Light Company; Florida Power Corporation;

Georgia Power Company; Gulf Power Company; Illinois Power

Company; Indiana Michigan Power Company; Indianapolis

Power & Light Company; Jacksonville Electric Authority;

Kansas City Power & Light Company; Kentucky Power Company;

Kentucky Utilities Company; Long Island Lighting Company;

Louisville Gas and Electric Company; Madison Gas and

Electric Company; Midwest Power Systems, Inc.; Minnesota

Power Company; Mississippi Power Company; Monongahela

Power Company; Montaup Electric Company; New England Power

Company; New York State Electric & Gas Corporation;

Niagara Mohawk Power Corporation; Northern Indiana Public

Service Company; Oglethorpe Power Corporation; Ohio Edison

Company; Pennsylvania Power Company; Ohio Power Company;

Ohio Valley Electric Corporation; Oklahoma Gas and Electric

Company; Pacificorp Electric Operations; Pennsylvania

Power & Light Company; Philadelphia Electric Company;

Potomac Electric Power Company; PSI Energy, Inc.; Public

Service Company of New Mexico; Public Service Electric &

Gas Company; Salt River Project; Savannah Electric and

Power Company; South Carolina Electric & Gas Company;

Southern California Edison Company; Tampa Electric Company;

Tucson Electric Power Company; Union Electric Company;

Virginia Power; West Penn Power Company; Wisconsin Public

Service Corporation; Edison Electric Institute; National

Rural Electric Cooperative Association; American Public

Power Association; The Potomac Edison Company, Intervenors.

Nos. 92-1535, 92-1596, 93-1004 and 92-1630.

United States Court of Appeals, District of Columbia Circuit

May 6, 1994

        Argued March 3, 1994.

        Suggestion for Rehearing In Banc Denied Aug. 5, 1994.

Page 1126

[Copyrighted Material Omitted]

Page 1127

[Copyrighted Material Omitted]

Page 1128

[Copyrighted Material Omitted]

Page 1129

        Petitions for Review of Decisions of the United States Environmental Protection Agency.

        David M. Driesen argued the cause for petitioner Natural Resources Defense Council. On briefs were David G. Hawkins and Neil J. King.

        William J. Hamel argued the cause for petitioners National Auto. Dealers Ass'n, et al. On briefs were Douglas I. Greenhaus and Dimitri G. Daskal. George T. Marcou entered an appearance.

        Seth M. Barsky and Ronald M. Spritzer, Attorneys, U.S. Dept. of Justice, argued the cause for the respondents. On briefs were Lois J. Schiffer, Acting Asst. Atty. Gen., Martin F. McDermott, Attorney, U.S. Dept. of Justice, and Jan Tierney, Sara Schneeberg and Michael Prosper, Counsel, U.S.E.P.A.

        On briefs for intervenor Envirotest Systems Corp. was Roger J. Marzulla. Mark P. Fitzsimmons entered an appearance.

        On brief for intervenors Alabama Power Co., et al. were Henry V. Nickel, Andrea Bear Field and Ross S. Antonson.

        Before MIKVA, Chief Judge, WALD and HENDERSON, Circuit Judges.

        Opinion for the court filed PER CURIAM.

        PER CURIAM:

        The petitioners seek review of decisions of the Environmental Protection Agency ("EPA") implementing the 1990 Amendments to the Clean Air Act ("CAA"), 42 U.S.C. Secs. 7401 et seq. First, petitioner Natural Resources Defense Council, Inc. ("NRDC") challenges the EPA's policy of permitting conditional approval of committal state implementation plan ("SIP") submissions. In addition, all petitioners challenge substantive agency decisions in the EPA's final rule on vehicle inspection and maintenance programs ("I/M"); the NRDC challenges the rule's effective and implementation dates for enhanced I/M, its geographic scope for both basic and enhanced I/M, and several aspects of the performance standard adopted for I/M, while petitioners National Automobile Dealers Association, et al. ("NADA") challenge the EPA's use of notice and comment rulemaking to issue its I/M guidance and the rule's preference for centralized vehicle emission testing. We address the challenges separately. 1

Glossary of Acronyms APA Administrative Procedure Act CAA Clean Air Act EPA Environmental Protection Agency I/M Inspection and Maintenance NAAQS National Ambient Air Quality Standards NADA National Automobile Dealers Association NOx Nitrous Oxide NRDC Natural Resources Defense Council RACT Reasonably Available Control Technology SIP State Implementation Plan

Page 1130

       I. CONDITIONAL APPROVAL OF SIPS

        First, the NRDC challenges the EPA's use of a "conditional approval" procedure, under section 110(k)(4) of the 1990 Amendments, Pub.L. No. 101-549, tit. I, Sec. 110(k)(4), 104 Stat. 2399, 2407 (codified at 42 U.S.C. Sec. 7410(k)(4)), to permit states to comply with statutory SIP deadlines by submitting "committal" SIPs that contain no specific remedial measures but merely promise to adopt such measures within a year. The NRDC contends this procedure is contrary to congressional intent and has impermissibly postponed the statutory deadlines for the affected SIP submittals. To remedy the delay caused by the EPA's conditional approval procedure, the NRDC asks that we require prompt submission and review of all overdue SIPs and immediate imposition of statutory sanctions on states that have not submitted adequate SIPs as of July 15, 1994. While we hold that the EPA misconstrued and misapplied section 110(k)(4), we nevertheless conclude that equity and practicality require that we approve the extensions in part and that we adopt more moderate remedial measures, as set out below.

        Since it was amended in 1970, the CAA has required states to adopt, after reasonable notice and public hearings and approval by the EPA, SIPs designed to attain and maintain "national ambient air quality standards" ("NAAQS"). See 42 U.S.C. Sec. 7410(a)(2)(A) (added by Pub.L. No. 91-604, Sec. 4(a), 84 Stat. 1680 (1970)). Not until 1990,...

To continue reading

FREE SIGN UP