1000 Friends of Maryland v. Browner

• Decision Date: 02 April 2001
• Docket Number: No. 00-1489,00-1489
• Citation: 265 F.3d 216
• Parties: (4th Cir. 2001) 1000 FRIENDS OF MARYLAND, Petitioner, v. CAROL M. BROWNER, in her official capacity as Administrator, U.S. Environmental Protection Agency; THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,Respondents, BWI BUSINESS PARTNERSHIP, INCORPORATED, Intervenor, ADVOCATES FOR SAFE AND EFFICIENT TRANSPORTATION, Amicus Curiae. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 216

265 F.3d 216 (4th Cir. 2001)

1000 FRIENDS OF MARYLAND, Petitioner, v. CAROL M. BROWNER, in her official capacity as Administrator, U.S. Environmental Protection Agency; THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,Respondents, BWI BUSINESS PARTNERSHIP, INCORPORATED, Intervenor, ADVOCATES FOR SAFE AND EFFICIENT TRANSPORTATION, Amicus Curiae.

No. 00-1489

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: April 2, 2001

Decided: September 11, 2001

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

Petition denied by published opinion. Judge Traxler wrote the opinion, in which Judge Luttig and Judge Thornburg joined. [Copyrighted Material Omitted] COUNSEL ARGUED: Jeffrey Herrema, Student Attorney, Wade Wilson, Student Attorney, Environmental Law Clinic, UNIVERSITY OF MARYLAND SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. David Jay Kaplan, Environment & Natural Resources Division, Environmental Defense Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. ON BRIEF: Rena I. Steinzor, Brian Higgins, Student Attorney, Environmental Law Clinic, UNIVERSITY OF MARYLAND SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. John Cruden, Acting Assistant Attorney General, David Gualtieri, Environment & Natural Resources Division, Environmental Defense Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sara Schneeberg, Office of General Counsel, ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C.; Cecil A. Rodrigues, Office of Regional Counsel-Region III, ENVIRONMENTAL PROTECTION AGENCY, Philadelphia, Pennsylvania, for Respondents. Norman W. Fichthorn, Allison D. Wood, Virginia S. Albrecht, HUNTON & WILLIAMS, Washington, D.C.; Michael C. Powell, GORDON, FEINBLATT, ROTHMAN, HOFFBERGER & HOLLANDER, L.L.C., Baltimore, Maryland, for Intervenor. David M. Friedland, Gus B. Bauman, David M. Williamson, BEVERIDGE & DIAMOND, P.C., Washington, D.C., for Amicus Curiae.

Before LUTTIG and TRAXLER, Circuit Judges, and Lacy H. THORNBURG, United States District Judge for the Western District of North Carolina, sitting by designation.

OPINION

TRAXLER, Circuit Judge:

1000 Friends of Maryland (the "Petitioner"), a citizens group "committed to the advocacy of wise land use policies that will abate environmental problems throughout Maryland," Brief of Petitioner at 1, seeks judicial review under the Clean Air Act of a final action taken by the Environmental Protection Agency ("EPA") in connection with Baltimore's efforts to comply with the Clean Air Act's ozone requirements. We deny the petition for review.¹

I. Statutory Framework

The Clean Air Act, 42 U.S.C.A. SS 7401 et seq. (West 1995 & Supp. 2001) (sometimes the "CAA" or the "Act"), is a comprehensive program for controlling and improving the nation's air quality. Under the CAA, the EPA identifies air pollutants that endanger the public health or welfare, determines what concentrations of those pollutants are safe, and promulgates those determinations as national ambient air quality standards ("NAAQS"). See 42 U.S.C.A. SS 7408, 7409. Each state bears responsibility for ensuring that its ambient air meets the appropriate NAAQS. See 42 U.S.C.A. S 7407(a). Ozone is one of the pollutants identified and regulated by the EPA. ² See 40 C.F.R. S 50.9 (2001).³

States must establish a state implementation plan ( "SIP") that provides "for implementation, maintenance, and enforcement" of the EPA's air quality standards. 42 U.S.C.A. S 7410(a)(1). The Clean Air Act requires SIPs to include "enforceable emission limitations and other control measures, means, or techniques, . . . as well as schedules and timetables for compliance" to meet the NAAQS. 42 U.S.C.A. S 7410(a)(2)(A). States submit their SIPs to the EPA for approval, and the states must revise their plans "as may be necessary to take account of [NAAQS] revisions," 42 U.S.C.A. S 7410(a)(2)(H)(i), or whenever the EPA determines that a SIP is "substantially inadequate to attain" the NAAQS. 42 U.S.C.A. S 7410(a)(2)(H)(ii).

Areas that do not meet the relevant air quality standards are known as "nonattainment areas." 42 U.S.C.A. S 7407(d)(1)(A)(i). As to attainment of the ozone NAAQS, the CAA establishes five levels of nonattainment classifications--marginal, moderate, serious, severe, and extreme--based upon how close the area comes to meeting the standard. See 42 U.S.C.A. S 7511(a)(1). The Act imposes progressively stringent requirements on areas falling within each nonattainment classification. Baltimore is classified as a severe ozone nonattainment area and must attain the ozone NAAQS no later than November 15, 2005.

States with serious, severe, or extreme nonattainment areas must submit to the EPA for approval certain revisions to their SIPs, including "attainment demonstrations" which show how each nonattainment area will achieve the ozone NAAQS by the appropriate date. See 42 U.S.C.A. SS 7511a(c)(2)(A), 7511a(d). Attainment demonstrations "must be based on photochemical grid modeling or any other analytical method determined by the Administrator, in the Administrator's discretion, to be at least as effective." 42 U.S.C.A. S 7511a(c)(2)(A).⁴

To satisfy the statutory requirements, the EPA requires attainment SIPs to

contain an inventory of current NAAQS pollutant emissions, as well as air quality modeling which demonstrates that[,] given certain assumptions about population growth, economic growth, and growth in vehicle miles traveled (VMT), the SIP's control measures will result by a certain date in a level of emissions which is in attainment with the NAAQS.

Criteria for Determining Conformity, 58 Fed. Reg. 3768, 3769 (proposed Jan. 11, 1993). This level of emissions yielded after implementation of the SIP control strategies is referred to by the EPA as an "emissions budget." Id.

States with serious, severe, or extreme ozone nonattainment areas must also submit SIP revisions that show the area is making "reasonable further progress" towards reaching attainment. See 42 U.S.C.A. S 7511a(c)(2)(B). Section 7511a(c)(2)(B) requires that the states "demonstrate in the SIP that emissions of volatile organic compounds (VOC) will be reduced by 15% from 1990 baseline emissions by 1996," and that "in milestone years occurring every three years from 1996 until the attainment date, VOC will be reduced from baseline emissions by an average of three percent per year." 58 Fed. Reg. at 3769. "The [reasonable further progress] requirements in effect create an emissions budget for each milestone year, in addition to the budget that applies for the attainment year." Id.

Motor vehicle emissions are major contributors to ozone pollution. See Virginia v. United States, 74 F.3d 517, 520 (4th Cir. 1996) ("[A]utomobile exhaust, as a source of both[volatile organic compounds] and nitrogen oxides, is a major cause of increased ozone levels."); Michael R. Yarne, Conformity as Catalyst: Environmental Defense Fund v. Environmental Protection Agency, 27 Ecology L.Q. 841, 846 (2000) (noting that lightand heavy-duty vehicles emit a large percentage of the precursors that form to create ozone). Thus, effective control of ozone pollution requires consideration and regulation of vehicle emissions.

The EPA requires that the emissions budgets established in attainment demonstrations and demonstrations of reasonable further progress include a quantitative motor vehicle emissions budget, which establishes the "portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision . . . allocated to highway and transit vehicle use and emissions." 40 C.F.R. S 93.101. According to the EPA, "[a] SIP cannot effectively demonstrate attainment unless it identifies the level of motor vehicle emissions that can be produced while still demonstrating attainment." Approval and Promulgation of Air Quality Implementation Plans, 64 Fed. Reg. 70,397, 70,402 (proposed Dec. 16, 1999).

Given the relationship between motor vehicle emissions and ozone pollution, the Clean Air Act also includes certain "conformity" provisions that "integrate[ ] 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." Sierra Club v. EPA, 129 F.3d 137, 138 (D.C. Cir. 1997).

Pursuant to the conformity provisions, no federal "department, agency, or instrumentality" may "engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved." 42 U.S.C.A. S 7506(c)(1). An activity "conforms" to the applicable SIP only if the activity is consistent with the SIP's "purpose of eliminating or reducing the severity and number of violations of the [NAAQS] and achieving expeditious attainment of such standards," 42 U.S.C.A. S 7506(c)(1)(A), and if the activity 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.A. S 7506(c)(1)(B).

The Clean Air Act also requires a state's transportation plans and programs⁵ to be consistent with the applicable SIP by providing that state officials may not adopt a transportation plan or program, nor find such a plan or program to be in conformity, "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." 42 U.S.C.A. S 7506(c)(2)(A). Federal agencies may not "approve, accept or fund any transportation plan, program or project" unless it...