Citizens for a Better Environment v. Wilson, C89-2044 TEH

• Decision Date: 19 August 1991
• Docket Number: No. C89-2044 TEH,C89-2064 TEH.,C89-2044 TEH
• Citation: 775 F. Supp. 1291
• Court: U.S. District Court — Northern District of California
• Parties: CITIZENS FOR A BETTER ENVIRONMENT, et al., Plaintiffs, v. Pete B. WILSON, et al., Defendants. SIERRA CLUB, Plaintiff, v. METROPOLITAN TRANSPORTATION COMMISSION, et al., Defendants.

775 F. Supp. 1291

CITIZENS FOR A BETTER ENVIRONMENT, et al., Plaintiffs, v. Pete B. WILSON, et al., Defendants.

SIERRA CLUB, Plaintiff, v. METROPOLITAN TRANSPORTATION COMMISSION, et al., Defendants.

Nos. C89-2044 TEH, C89-2064 TEH.

United States District Court, N.D. California.

August 19, 1991.

William S. Curtiss, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., Alan Waltner, Gorman & Waltner, Oakland, Cal., Roger Beers, San Francisco, Cal., for plaintiffs Citizens for a Better Environment, Jean Siri and Sierra Club.

Daniel E. Lungren, Robert H. Connett, M. A. Jennings, Cal. State Atty. Gen. Office, San Francisco, Cal., for defendants Ass'n of Bay Area Governments, Bay Area Air Quality Management Dist., CA Air Resources Bd., George Deukmejian and Pete B. Wilson, Cal. Governors and James D. Boyd.

David D. Cooke, Robert D. Wyatt, Beveridge & Diamond, San Francisco, Cal., for defendant Metropolitan Transp. Com'n.

George Rios, Joan R. Gallo, San Jose City Attys. Office, San Jose, Cal., for amici curiae City of Mountain View, County of Santa Clara and City of San Jose.

DECISION AND ORDER

THELTON E. HENDERSON, Chief Judge.

This matter came before the Court on May 9, 1991, and June 18, 1991, on plaintiffs' Motion for Contempt, or in the Alternative, Summary Judgment Regarding Transportation Control Measures, and the Metropolitan Transportation Commission's ("MTC") Cross-Motion for Partial Summary Judgment. The Court subsequently ordered supplemental briefing. Now, having considered all of the parties' oral arguments and written submissions, and having consulted with the court appointed neutral expert Professor Martin Wachs of the University of California at Los Angeles, concerning the technical issues raised by plaintiffs' motion for contempt or summary judgment, the Court denies MTC's cross-motion and grants in part, and denies in part, plaintiffs' motion for contempt or summary judgment for the reasons set forth below.

BACKGROUND

The 1982 Bay Area Air Quality Plan ("1982 Plan"), which represents the plan for achieving minimum federal air quality standards in the Bay Area, required MTC to implement a contingency plan in the event the Bay Area was not making Reasonable Further Progress ("RFP") toward attaining the National Ambient Air Quality Standards ("NAAQS") for carbon monoxide and ozone. On September 19, 1989, we found that (1) RFP had not been made for ozone or carbon monoxide in the Bay Area, and (2) that MTC had nevertheless failed to implement the contingency plan for the transportation sector. See, Citizens for a Better Environment v. Deukmejian, 731 F.Supp. 1448 (N.D.Cal.1990) ("CBE I").

Accordingly, we ordered MTC to implement the contingency plan for the transportation sector, which contains two components. Id. at 1461. The second component, which is at issue here, required MTC to adopt, within six months, sufficient additional transportation control measures ("TCMs") to bring the region "back within the RFP line." Id. 1982 Plan at H-2. In response, MTC passed Resolution 2131 on February 28, 1990, adopting 16 additional TCMs.

These 16 additional TCMs (referred to by the parties as the "2131 TCMs" after the Resolution number) included, among other things, preservation of ferry services added after the October 1989 earthquake, fare coordination between BART and buses, expanding participation in Caltrans' Fuel Efficient Traffic Signal Management Program, and a request that the state legislature raise the Bay Bridge toll to two dollars. MTC estimated that these 16 measures would reduce hydrocarbon (or VOC — volatile organic compound) emissions, which are a precursor to ozone, by 3.83 tons per day ("tpd") by 1996. The measures were also estimated to reduce carbon monoxide emissions by 74.1 tpd by 1996. Brittle Decl., Exh. E; Plaintiff's Exh. A at 036.

Plaintiffs contend that the adoption of the above 16 measures did not fulfil MTC's obligation under the contingency plan because they will not achieve sufficient reductions to put the San Francisco Bay Area back on the "RFP line" as defined in the 1982 Plan. Accordingly, they urge us to find MTC in contempt of our September 19, 1989, ruling requiring MTC to adopt sufficient TCMs to bring the region back within the RFP line; alternatively, they seek a summary judgment that MTC is in continuing violation of the contingency plan.

MTC does not dispute its obligation, under the 1982 Plan's contingency plan, to adopt sufficient additional TCMs to put the Bay Area back on the RFP line. However, it contends that to determine whether the region is currently making reasonable further progress (and therefore "on the RFP line"), we must look to the new reduction schedules set forth in the recent 1990 amendments to the Clean Air Act ("1990 amendments"), rather than the RFP benchmarks committed to in the 1982 Plan. Thus, MTC moves for a partial summary judgment that the 1990 amendments supplant any RFP benchmark required by the 1982 Plan.

MTC also contends that, in any event, the record demonstrates that RFP has been satisfied for the Bay Area for both ozone and carbon monoxide whether RFP is measured by the terms of the 1982 Plan or the 1990 amendments. Plaintiffs vigorously dispute this assertion and contend that MTC's calculations and projections are flawed in various respects. As MTC's cross-motion raises the threshold issue of which RFP standard MTC's efforts must be measured against, we address this motion first.

DISCUSSION

I. MTC's Cross-Motion for Summary Judgment

MTC seeks a ruling that, as a matter of law, reasonable further progress must now be measured solely in accordance with the emission reduction schedules set forth in the 1990 amendments, and therefore MTC's efforts to satisfy its obligation under the 1982 Plan, to adopt sufficient additional TCMs to achieve RFP, should be evaluated only by reference to these schedules.

We begin by noting that the 1990 amendments did not change the general concept of "reasonable further progress." Under both the 1977 and the 1990 amendments, reasonable further progress denotes the annual incremental reductions in emissions that are necessary to achieve federal air quality standards (NAAQS) by the statutory deadline. 42 U.S.C. § 7501(1).¹ Every state implementation plan ("SIP") must contain enforceable measures that provide for reasonable further progress. 42 U.S.C. § 7502(b)(3) (1977) and § 7502(c)(2) (1990); Delaney v. EPA, 898 F.2d 687, 692 (9th Cir.1990); Citizens for a Better Environment v. Deukmejian, 746 F.Supp. 976, 979-80 (N.D.Cal.1990) ("CBE II").

The 1982 Plan (the SIP for the Bay Area), contains RFP benchmarks for ozone and carbon monoxide based on data available at the time the Plan was prepared. Thus, for example, with respect to ozone, the 1982 Plan committed to an "RFP line" that required reducing hydrocarbon emissions by 85 tpd and achieving a 430 tpd hydrocarbon emissions level in the Bay Area by 1987, the then applicable statutory deadline. CBE II, 746 F.Supp. at 982-83. The 1982 Plan contemplated that if this and other RFP benchmarks committed to were satisfied, the Bay Area would achieve NAAQS for ozone and carbon monoxide by 1987.

Unfortunately, most areas, including the Bay Area, failed to achieve NAAQS by 1987. In response, Congress amended the Clean Air Act in 1990 to require that most SIPs, including the 1982 Plan, be revised over the next two to three years to provide for strategies that will result in attainment of NAAQS by the new statutory deadlines. See 42 U.S.C. §§ 7511a(b)(1)(A)(i), 7512a(a)(7). For the Bay Area, which has been designated a "moderate" non-attainment area, NAAQS for ozone must be achieved by 1996; NAAQS for carbon monoxide must be achieved by 1995.

Congress also added some additional teeth to the RFP requirement, hoping to avoid a repetition of its experience with the 1977 amendments, which generated disappointingly little compliance with the statutory deadline. Previously, RFP referred only to such annual incremental reductions that were sufficient in the judgment of the Administrator to allow for attainment by the statutory deadline; under the 1990 amendments it refers to such annual incremental reductions in emissions "as are required by this part" or that may be required by the Administrator for the purpose of ensuring that NAAQS are attained by the statutory deadline. 42 U.S.C. § 7501 (1977 and 1990).

The phrase "as are required by this part" refers to specific reduction schedules that must be incorporated into the new, revised SIPs. In moderate non-attainment areas, for example, the revised SIPs must demonstrate that hydrocarbon emissions will be reduced 15 percent by November 15, 1996 from the base year of 1990 (accounting for any growth) pursuant to section 182(b), 42 U.S.C. § 7511a(b)(1)(A)(i). Similarly, the revised SIPs must demonstrate that carbon monoxide (CO) levels will decline 23.73 percent in the Bay Area from current levels by December 31, 1995, beginning from base year 1989. Section 187(a)(7), 42 U.S.C. § 7512a(a)(7), and April 5, 1991 Order at 4.²

In short, once the SIP for the Bay Area is revised pursuant to the 1990 amendments, it will incorporate new RFP benchmarks reflecting the new reduction schedules provided by Congress. 42 U.S.C. § 7511a(b)(1)(A) (State shall submit SIP revision within three years that provides for 15 percent reduction in VOCs from baseline emissions, accounting for growth) (emph. added); 42 U.S.C. § 7512a(a)(7) (State shall submit a revision attainment of carbon monoxide NAAQS by applicable attainment date) (emph. added); 42 U.S.C. §§ 7502(c)(2), 7501(1).

MTC's motion poses the issue whether, notwithstanding the new reduction schedules noted above, Congress intended to hold agencies to their RFP commitments in existing SIPs during this interim SIP revision period.

One thing should be made immediately clear. This is not an "either-or" proposition. It is not a question of whether, between...