City of Santa Rosa v. U.S. E.P.A.
| Decision Date | 29 March 1976 |
| Docket Number | No. 73-3262,73-3262 |
| Citation | 534 F.2d 150 |
| Parties | , 6 Envtl. L. Rep. 20,422 CITY OF SANTA ROSA et al., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, * Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: WRIGHT, KILKENNY and SNEED, Circuit Judges.
This proceeding evolved from numerous petitions for review of regulations promulgated by the Environmental Protection Agency (EPA) under the 1970 amendments to the Clean Air Act (the Act). 1 In due course, petitioners were informed at a pre-hearing conference that the court contemplated entering a judgment regarding the constitutional issues pursuant to Rule 54(b), Fed.R.Civ.P., prior to disposing of such other issues as the parties presented. Our resolution of those constitutional issues is reported in Brown v. EPA, 521 F.2d 827 (9th Cir. 1975).
Subsequently, each petitioner was asked to inform the court what issues, if any, it still desired the court to review. The State of California, the cities of Burbank, Los Angeles, and San Jose, and Pacific Legal Foundation indicated that the only remaining issue was the validity of the gasoline limitation regulation, 40 C.F.R. § 52.241. All other petitions for review were dismissed. (Order of Dismissal, Community Redevelopment Agency of City of Hawthorne v. EPA, 525 F.2d 1366 (9th Cir. 1975)).
The factual background of this appeal is reported in Brown, supra at 829-30. The remaining petitioners focus on that part of EPA's plans for implementing, maintaining, and enforcing the national ambient air quality standards which require reduction in the supply of gasoline to selected areas in California. 40 C.F.R. § 52.241 states:
§ 52.241 Gasoline limitations.
(a) Definitions:
(1) 'Distributor' means any person or entity that transports, stores, or causes the transportation or storage of gasoline between any refinery and any retail outlet.
(2) 'Retail outlet' means any establishment at which gasoline is sold or offered for sale to the public, or introduced into any vehicle.
(b) This regulation is applicable in the Metropolitan Los Angeles, San Francisco Bay Area, Sacramento Valley, San Joaquin Valley, and San Diego Intrastate Air Quality Control Regions (the 'Regions') to all distributors of gasoline to any retail outlet in the Regions, and to the owners and operators of all retail outlets in the Regions.
(c) If the Administrator determines, on the basis of air quality monitoring in the Regions, that the national ambient air quality standards for carbon monoxide and photochemical oxidants will not be attained in a Region by May 31, 1977, the Administrator shall implement a program, to be effective no later than May 31, 1977, limiting the total gallonage of gasoline delivered to retail outlets in that Region to that amount which, when combusted, will not result in the ambient air quality standards being exceeded.
(d) All distributors to which this section applies shall provide the Administrator with a detailed annual accounting of the amount of gasoline delivered to each retail outlet in the Regions for calendar year 1976 and for each calendar year during which the gasoline limitation program is in effect. The owner or operator of each retail outlet to which this section applies shall provide the Administrator with a detailed accounting of gasoline received from each distributor, the total amount of gasoline sold during the year, and the amount of gasoline on hand at the beginning and end of the year, for each year during which the gasoline limitation program is in effect. All accountings required by this section shall be provided no later than 90 days after the end of the applicable year. The Administrator may require any other report that he may deem necessary for the implementation of this section.
While the regulation does not specify the extent of gasoline reduction which will be required in order to meet air quality standards, petitioners' objections to it are based on the belief that it will severely restrict if not eliminate the supply of gasoline in the several Air Quality Control Regions. At oral argument, the court asked EPA to supply information by affidavit detailing the extent of reductions now contemplated as necessary if the May 31, 1977 air quality deadline is to be met. Affidavits received from the national and regional administrators support petitioners' predictions.
The regional administrator, using the latest available air quality readings (1973) forecasts a 100% gasoline reduction in each of the five Air Quality Control Regions in order to meet the national ambient air quality standard. In addition to noting that this forecast was subject to revision based on later air quality readings, the regional administrator suggested that a 50% reduction in certain non-automobile emissions by May 31, 1977 would lessen the required gasoline reductions. If this were the case, these reductions would be necessary:
Amount of Auto
Air Quality Control Gas
Region Reduction
----------------------------------- --------------
San Francisco Bay Intrastate 52%
San Diego Intrastate 68%
Sacramento Valley Intrastate 31%
San Joaquin Valley Intrastate None
Metropolitan Los Angeles Intrastate 100%
Given the magnitude of even the more optimistic level of gasoline reductions suggested by the regional administrator, all parties agree that implementation of 40 C.F.R. § 52.241 would produce extreme social and economic disruption. Perhaps for this reason, both the national and regional administrators have informed the court that they do not expect that this regulation will ever become effective.
The national administrator informed the court that he has publicly advocated amendments to the Act which would both defer the implementation date of transportation controls and allow the removal of gas rationing from a plan if it would have serious disruptive effects. He cited to us House and Senate versions of amendments to the Act now in the committee stage which, if enacted, would allow him to avoid implementing 40 C.F.R. § 52.241 on May 31, 1977. In light of the proposed amendments, the administrator urges us:
(t)o defer any ruling on this matter for a period of time sufficient to allow Congress to complete its debates and legislate appropriate relief.
(Affidavit of Russell Train at 8.)
Petitioners contend, on the other hand, that the regulation's implementation date is fast approaching and resolutions of the issue should not be delayed. They claim that "massive planning efforts" will be required prior to implementation in order to adjust to and ameliorate its effect. Consequently, postponement of a decision on the validity of the regulation would prevent such planning if in fact it is necessary.
EPA's suggestion that we await Congressional action must be rejected. While revision of the Act is certainly within the proper scope of Congressional action, the regulation now before us has the force of law unless and until Congressional action is taken. To defer review of this regulation because of the possibility that the law will be altered would be an abdication of our responsibility. Moreover, we note that the parties seeking review of the regulation must undertake in advance substantial efforts to minimize its adverse effects. They cannot await the implementation date before acting.
The Act imposes upon the administrator the obligation to assure the attainment of the national ambient air quality standards by May 31, 1975. (42 U.S.C. § 1857c-5(a)(2)(A)(i)). The administrator is permitted to provide a two-year extension of the deadline if the requirements outlined in 42 U.S.C. § 1857c-5(e) are met. This includes a determination that all "reasonably available alternatives" have been considered in an attempt to meet the original deadline. (42 U.S.C. § 1857c-5(e)(1)(B)). National Resources Defense Council, Inc. v. EPA, 154 U.S.App.D.C. 384, 475 F.2d 968, 971 (1973). The administrator granted the maximum allowable extension here for the implementation of 40 C.F.R. § 52.241 because he determined that it would be socially and economically disruptive and, therefore, not a "reasonably available alternative." Social and economic disruptions resulting from an implementation plan have been held to permit the conclusion that the plan was not a "reasonably available alternative." Friends of Earth v. EPA, 499 F.2d 1118, 1127 (2d Cir. 1974).
While the administrator recognizes that the same possibilities which made the extension of the deadline proper still exist, he contends that he is foreclosed from further delaying the implementation of this plan.
(T)he Clean Air Act leaves the Administrator no alternative to promulgating all measures necessary to meet the standard by 1977. Accordingly, the plan also contains a provision for reducing the supply of gasoline to the extent necessary to ensure attainment of the standards by that date. Such a measure, if implemented, would achieve the air quality standards. However, the EPA does not believe that massive gasoline rationing is either socially acceptable or enforceable . . . .
38 Fed.Reg. 31237. It is EPA's position that once all permissible extensions have been granted, it is bound by statute to implement the only available means for reaching the national air quality standard. At this stage, economic and social disruption are no longer cognizable factors.
Petitioners do not suggest that a "reasonably available alternative" means to...
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