82 F.3d 451 (D.C. Cir. 1996), 94-1044, Environmental Defense Fund, Inc. v. E.P.A.

Docket Nº:94-1044 and 94-1062.
Citation:82 F.3d 451
Party Name:Envtl. ENVIRONMENTAL DEFENSE FUND, INC., Sierra Club, Natural Resources Defense Council, Inc., Conservation Law Foundation, Oregon Environmental Council, Delaware Valley Citizens Council for Clean Air, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, American Trucking Associations, Inc. and American Road and Transportation Build
Case Date:April 19, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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82 F.3d 451 (D.C. Cir. 1996)



Resources Defense Council, Inc., Conservation Law

Foundation, Oregon Environmental Council, Delaware Valley

Citizens Council for Clean Air, Petitioners



American Trucking Associations, Inc. and American Road and

Transportation Builders Association, Intervenors.

Nos. 94-1044 and 94-1062.

United States Court of Appeals, District of Columbia Circuit

April 19, 1996

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Argued Dec. 13, 1995.

Howard I. Fox, Washington, DC, for Sierra Club Legal Defense Fund, et al., and Robert E. Yuhnke, Chicago, IL, for Environmental Defense Fund, Inc., argued the cause for the petitioners. On brief were William S. Curtiss, San Francisco, CA, and James T. Tripp, New York City.

Eileen T. McDonough, Washington, DC, and Alan J. Birnbaum, New York City, Attorneys, Department of Justice, argued the cause for the respondents. On brief were Lois J. Schiffer, Assistant Attorney General, Department of Justice, Sara Schneeberg, Attorney, Environmental Protection Agency, and Peter J. Plocki, Attorney, Department of Transportation, Washington, DC, Mary E. Ward, Attorney, Winston-Salem, NC, Department of Justice, entered an appearance.

F. William Brownell and Lee A. Casey, Washington, DC, for American Road and Transportation Builders Association, and Linda S. Mounts, Alexandria, VA, for American Trucking Associations, Inc., were on the joint brief for the intervenors. Mark G. Weisshaar, Washington, DC, entered an appearance for American Road and Transportation Builders Association.

Before: SILBERMAN, GINSBURG and HENDERSON, Circuit Judges.

Opinion for the Court filed Per Curiam.


The petitioners, six environmentalist associations, 1 (collectively cited as EDF) seek review of regulations promulgated by the Environmental Protection Agency (Agency or EPA) pursuant to section 176 of the Clean Air Act, 42 U.S.C. § 7506. For the reasons set forth below, we deny the petitions for review.


Since 1970 the Clean Air Act has required states to adopt, after reasonable notice and public hearings and approval by the Agency, State Implementation Plans (SIPs) that "provide[ ] for implementation, maintenance, and enforcement" of "national ambient air quality standards." 42 U.S.C. § 7410(a)(2)(A). In 1977 Congress amended the Act by adding section 176, 42 U.S.C. § 7506. That section, as amended, requires each federal agency to determine that a proposed activity in a "nonattainment" or "maintenance" area 2 conforms to an applicable SIP before the agency can "engage in, support in any way or provide financial assistance for, license or permit,

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or approve" the activity and prohibits a "metropolitan planning organization" 3 from approving "any project, program, or plan which does not conform to [an applicable SIP]." 42 U.S.C. § 7506(c)(1). 4 Subsection (c)(2) of section 176 specifically addresses conformity of transportation programs and plans "developed pursuant to Title 23 or the Urban Mass Transportation Act." Each of the cited laws requires that a metropolitan planning organization establish for its area both a "long range" transportation plan and a "transportation improvement program" (TIP). 23 U.S.C. § 134(g), (h); 49 U.S.C. §§ 5303(f), 5304(a). 5 Subsection (c)(2) requires that the transportation plans and TIPs "implement the transportation provisions of any applicable [SIP] applicable to all or part of the area covered by such transportation plan or program" and prohibits federal approval, acceptance or funding of any transportation plan unless it is first found to conform to the SIP. 6 42 U.S.C. § 7506(c)(2). In addition, subsection (c)(4) further directs the Agency to "promulgate criteria and procedures for determining conformity" under the statute. Accordingly, the Agency published its final "Transportation Conformity Rule" on November 24, 1993, see 58 Fed.Reg. 62,188, and its final "General Conformity Rule" on November 30, 1993, see 58 Fed.Reg. 63,214. It is to portions of these rules that the petitioners mount their challenge. We address each challenged regulation separately.


First, the petitioners challenge "grandfather" provisions that temporarily exempt

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certain projects from the section 176 conformity determination requirements. Both final rules require generally that conformity determinations for covered projects be made before any federal action is taken on them. See 40 C.F.R. §§ 51.850(a)-(b), 51.394(a). 7 Each rule exempts from the conformity determination requirement, however, projects that have undergone recent National Environmental Policy Act (NEPA) analyses--for non-transportation projects within the preceding five years and for transportation projects within the preceding three years. See 40 C.F.R. §§ 51.850(c)(1), 51.394(c)(1). 8 The petitioners contend the rules' "grandfather" provisions conflict with the clear conformity mandate of section 176(c)(1) and (c)(2). We disagree.

While the statute requires that a conformity determination be made before any federal action is taken, it also vests the Agency with discretion to set "the appropriate frequency for making conformity determinations" so long as "such determinations for transportation plans and programs [not] be less frequent than every three years." 42 U.S.C. § 7506(c)(4)(B)(ii). Exercising its discretion, the Agency set a conformity determination deadline of five years after a NEPA analysis for non-transportation projects and three years after a NEPA analysis for transportation projects. See 40 C.F.R. § 51.857(a) ("The conformity status of a Federal action automatically lapses 5 years from the date a final conformity determination is reported under § 51.855, unless the Federal action has been completed or a continuous program has been commenced to implement that Federal action within a reasonable time."); 40 C.F.R. § 51.394(c)(1) (exempting conformity determinations for transportation projects if there has been a "NEPA process completion" "within the past three years"). As the Agency explained, the accommodation was necessary to avoid immediate "retroactive" implementation of the new conformity requirement which would impose a substantial and unforeseen burden on federal projects that had already satisfied existing federal requirements. 58 Fed.Reg. at 63,216; see also 58 Fed.Reg. at 62,200 ("By proposing to allow projects which have final approval to proceed, and by proposing to require only one project-level conformity determination, EPA intended to avoid disrupting the implementation process for projects which are underway."). The resulting scheme permits projects in compliance with former statutory requirements, as demonstrated by the NEPA review, to proceed as planned so long as the

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newly required compliance determination is made according to the Agency's regulatory schedule. Because its schedule is consistent with the statutory language (preserving the one statutorily fixed three-year deadline for transportation project compliance determinations), we conclude it must be upheld as a reasonable exercise of the Agency's express statutory discretion to set conformity determination deadlines. See Woolen Mill Assocs. v. FERC, 917 F.2d 589, 593 (D.C.Cir.1990).


Next, the petitioners challenge two additional regulations on the ground that they permit untimely implementation of "transportation control measures" (TCMs) 9 in violation of the express requirements of section 176. We conclude both regulations reflect reasonable interpretations of the statutory language.

The petitioners first contend that 40 C.F.R. § 51.418(c)(1) allows approval of a TIP when the TIP's TCMs "are behind the schedule established in the applicable implementation plan" and therefore violates the statutory requirement that "no metropolitan planning organization or other recipient of funds under Title 23 or the Urban Mass Transportation Act shall adopt or approve a transportation improvement program of projects until it determines that such program provides for timely implementation of transportation control measures consistent with schedules included in the applicable implementation plan." 42 U.S.C. § 7506(c)(2)(B). According to the petitioners, the challenged regulation conflicts with the statute's clear mandate that no transportation project be approved unless it requires implementation of TCMs in strict compliance with the SIP schedules. We believe the petitioners construe the phrase "consistent with" too narrowly. Preceding the preposition "with," "consistent" means "agreeing or according in substance or form," that is "congruous" or "compatible." 3 Oxford English Dictionary 773 (2d ed. 1989). Thus, the statutory language does not require exact correspondence between the SIP TCM schedule and the TIP's implementation schedule but only congruity or compatibility between them. Cf. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898-99 (9th Cir.1986) (statutory phrase "consistent with the national contingency plan" in 42 U.S.C. § 9607(a)(2)(B) "does not necessitate strict compliance with [national contingency plan's] provisions") (citing Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 891-92 (9th Cir.1986)). Such congruity is attained under the promulgated regulation which permits deviation from a SIP schedule only when "the [metropolitan planning organization] and [the Department of Transportation] have determined that past obstacles to implementation of the TCMs have been identified and have been or are being overcome, and that...

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