Abramowitz v. U.S. E.P.A.

Decision Date06 January 1988
Docket NumberNo. 84-7642,84-7642
Parties, 56 USLW 2285, 18 Envtl. L. Rep. 20,151 Mark ABRAMOWITZ, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Daniel Selmi, Los Angeles, Cal., Nicholas C. Arguimbau, Law Offices of Ephraim Margolin, Marc Mihaly, Shute, Mihaly & Weinberger, San Francisco, Cal., for petitioner.

Michael Wenig, U.S. Dept. of Justice, Washington, D.C., for respondent.

Alan Waltner, Gorman & Waltner, Oakland, Cal., for intervenors Sierra Club, Citizens for a Better Environment, Coalition for Clean Air, Group Against Smog Pollution, and Clean Air Now.

Gregory R. McClintock, McClintock, Kirwan, Benshoof, Rochefort, and Weston, Los Angeles, Cal., for intervenor Western Oil and Gas Ass'n.

Robert A. Wyman, Latham & Watkins, Los Angeles, Cal., for intervenor Los Angeles Area Chamber of Commerce.

Petition for Review of Action by the Environmental Protection Agency.

Before WIGGINS and O'SCANNLAIN, Circuit Judges, and CARROLL, * District Judge.

O'SCANNLAIN, Circuit Judge:

This petition for judicial review of agency administrative action presents a unique question of jurisdiction and scope of review under the Clean Air Act. Petitioner challenges the Environmental Protection Agency's ("EPA or Agency") approval of certain air pollution control measures in the South Coast Air Basin (primarily the Los Angeles metropolitan area) portion of California's State Implementation Plan ("SIP") without EPA's requiring attainment of the statutory air quality standards before the December 31, 1987 deadline. EPA argues that while the court of appeals properly can review that part of its decision which approved the control measures, only a district court may review the December 31, 1987 attainment issue. Because we find both aspects of the EPA's decision reviewable in this court, the question then becomes whether we should simply vacate and remand the matter to the Agency for further consideration, or, in the alternative, direct the EPA to take action consistent with the specific restrictions and timetables prescribed by Congress.

We conclude that the EPA exceeded its authority under the Clean Air Act by approving the control measures without determining whether those measures would

demonstrate attainment by the December 31, 1987 statutory deadline. Because we find no evidence in the record to indicate that EPA intends to take final action before 1988, we remand this case with the specific instruction that EPA disapprove the relevant portions of the SIP and face up to implementing the measures which are to be triggered by failure to meet attainment requirements.

FACTS AND AGENCY PROCEEDINGS

Federal involvement in the regulation of air pollution began in 1955, with the passage of the Air Pollution Control Act. Pub.L. No. 84-159, 69 Stat. 322 (1955). The purpose of that legislation was to provide financial and technical assistance to the states in an effort to define and suggest solutions to the growing problem of air pollution. In 1963 Congress expanded its role with the enactment of the Clean Air Act ("CAA" or "Act"). Pub.L. No. 88-206, 77 Stat. 392 (1963). The 1963 legislation directed the then-designated Department of Health, Education & Welfare to prepare "criteria documents" on the effects of several air pollutants, and to distribute these documents among the states. The states were slow to act, however, and the Clean Air Act Amendments of 1970 reflected congressional impatience by increasing the federal role in air quality management. Pub.L. No. 91-604, 84 Stat. 1690 (1970); see Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 63-64, 95 S.Ct. 1470, 1473-74, 43 L.Ed.2d 731 (1975).

Section 109 of the 1970 CAA Amendments directed the Administrator of the EPA to establish National Ambient Air Quality Standards ("NAAQS") for any air pollutants that might endanger public health or welfare. 42 U.S.C. Sec. 7409 (1982). The provision stated that there should be two standards for each pollutant listed: "primary" standards were to allow "an adequate margin of safety ... requisite to protect the public health," while the "secondary" standards were to "protect the public welfare from any known or anticipated adverse effects associated with the presence of any such air pollutant in the ambient air." 42 U.S.C. Sec. 7409(b) (1982). EPA issued NAAQS standards for six criteria pollutants in 1971: particulate matter, sulfur dioxides, carbon monoxide, nitrogen oxides, ozone, and hydrocarbons. 36 Fed.Reg. 8186 (1971), 40 C.F.R. Part 50 (1986); see Currie, Air Pollution, Federal Law and Analysis, Sec. 4.02 (1981). Lead was added to the list in 1978 and hydrocarbons were removed in 1983. Id.

The 1970 Amendments also reflected Congress' intent to maintain a federal-state partnership for the control of air pollution. See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036 (7th Cir.1984). Section 110(a)(1) required that states submit state implementation plans ("SIPs") to provide for the "implementation, maintenance, and enforcement" of the NAAQS. 42 U.S.C. Sec. 7410(a)(1) (1982). Section 110(a)(2) identified specific control measures that must be included in a SIP. 42 U.S.C. Sec. 7410(a)(2) (1982). The 1970 Amendments also specified that the primary standards were to be attained within three years from the date of the original SIP's approval. 42 U.S.C. Sec. 7410(a)(2)(A) (1982).

Faced with widespread failure by the states to attain NAAQS standards within the initial timeframe, Congress in 1977 amended the Clean Air Act once again to allow certain "nonattainment" areas of the country to apply for time extensions. The new deadline for attainment of primary NAAQS was set for December 31, 1982. 42 U.S.C. Sec. 7502(a)(1) (1982). The only exception to the 1982 deadline appeared in section 172(a)(2) of part D in the 1977 Amendments, allowing for a five-year extension, to December 31, 1987, for those areas where it was "not possible" to meet the 1982 deadline for carbon monoxide or ozone standards. 42 U.S.C. Sec. 7502(a)(2) (1982).

EPA designated four California areas as "nonattainment" for carbon monoxide or ozone (or both) shortly after Congress enacted the 1977 CAA Amendments: South Coast Air Basin (carbon monoxide and ozone); Ventura County (ozone); Fresno County (carbon monoxide and ozone); Sacramento (ozone). 43 Fed.Reg. 8964 (Mar.

3, 1978). In 1979, pursuant to its authority to impose sanctions in 42 U.S.C. Sec. 7502, the EPA imposed a construction moratorium on all nonattainment areas in the country, 44 Fed.Reg. 38,473 (July 2, 1979), including the South Coast Air Basin comprising Orange County and portions of Los Angeles, San Bernardino, and Riverside Counties, the subject of this litigation. California subsequently submitted revisions to the South Coast SIP and received EPA approval. 47 Fed.Reg. 28617 (July 1, 1982). As a result, the construction ban was lifted. 47 Fed.Reg. 28620 (July 1, 1982).

In 1982 California requested and received an extension for attainment of carbon monoxide and ozone NAAQS until December 31, 1987. 47 Fed.Reg. 50,864 (Nov. 10, 1982). The state then submitted revisions for the South Coast SIP, but EPA proposed to disapprove the revisions and again to impose a construction ban. 48 Fed.Reg. 5074 (Feb. 3, 1983). In its notice of proposed rulemaking EPA noted that the control strategy would not achieve attainment by December 31, 1987. Id. at 5082.

EPA received considerable negative comment on its 1983 proposed disapproval. See 48 Fed.Reg. 50686 (Nov. 2, 1983); 49 Fed.Reg. 30300, 30303-04 (July 30, 1984). Subsequently, when the state submitted further revisions, EPA took final action by approving the carbon monoxide and ozone control measures without requiring any demonstration that those measures would achieve attainment by the statutory deadline. The Agency simply noted that it was deferring any final approval or disapproval of the attainment provisions in the SIP. 49 Fed.Reg. 30300, 30305 (July 30, 1984).

On September 28, 1984 Abramowitz filed a petition seeking review of EPA's July 30, 1984 decision. Abramowitz's petition was timely, complying with the sixty day limit proscribed in section 307(b)(1) of the CAA, 42 U.S.C. Sec. 7607(b)(1). Thereafter, Abramowitz and the EPA entered into a stipulation of agreement, and in September 1985 they made a joint request that this court stay consideration of the petition. After several extensions of the stay the court in October 1986 ordered Abramowitz either to dismiss the petition or to proceed with briefing. Abramowitz advised this court that settlement did not appear likely, and the case was set for argument. The Sierra Club, in association with four other environmental groups, filed a brief as intervenors in support of Abramowitz. The Western Oil and Gas Association ("WOGA") and the Los Angeles Area Chamber of Commerce also intervened, filing in support of the EPA. The Alabama Power Company (representing numerous electric power companies) filed an amicus brief in support of the EPA.

Less than one month before this case was argued, EPA "reproposed to disapprove" California's SIP for the South Coast carbon monoxide and ozone NAAQS standards. 52 Fed.Reg. 26404, 26431 (July 14, 1987). In that notice, the Agency acknowledged that continued deferral, for California as well as for other areas,:

would frustrate the purposes of Part D by abandoning upfront complete planning for attainment by a near-term fixed deadline in favor of iterative planning for progress alone. For primarily this reason, EPA has concluded that (1) it lacks authority to [continue deferral] for those extension areas that have yet to show that their SIPs assure attainment by the end of 1987 (or at least within a short time thereafter) and (2) it has no choice but to disapprove the plans...

To continue reading

Request your trial
43 cases
  • Murray Energy Corp. v. McCarthy, Civil Action No. 5:14-CV-39
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 17, 2016
    ...the authority to order the EPA to establish a reasonable schedule in which to achieve compliance. See, Abramowitz v. EPA, 832 F.2d 1071, 1078-79 (9th Cir. 1987) (finding that the court had the authority under the Clean Air Act to set the deadline by which the EPA had to act on a state's pro......
  • W. Watersheds Project v. Bernhardt
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • February 11, 2021
    ...decision at a later date does not detract from the final nature of the December decision."); cf. Abramowitz v. United States Envtl. Protection Agency , 832 F.2d 1071, 1075 (9th Cir. 1987) (EPA notice stating that it was "holding open" and "was not taking final action" on a ruling did not de......
  • Natural Resources Defense Council, Inc. v. SCAQMD, Case No. CV-08-05403-GW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • January 7, 2010
    ...or where the dispute as to the agency action is "embedded in a challenge to the validity of an implementation plan." Abramowitz v. EPA, 832 F.2d 1071, 1075-76 (9th Cir.1987). Since Section 173 consists entirely of requirements for the content of SIPs, it follows that Section 307 is the excl......
  • Earth Island Institute v. Christopher, Slip Op. 96-165.
    • United States
    • U.S. Court of International Trade
    • October 8, 1996
    ...must, and contributes to the goals of ESA in doing so. See, e.g., Ruckelshaus v. Sierra Club, supra; Abramowitz v. U.S. Environmental Protection Agency, 832 F.2d 1071 (9th Cir.1987); Oregon Natural Resource Council v. Turner, 863 F.Supp. 1277 Clearly, the plaintiffs at bar have served the p......
  • Request a trial to view additional results
4 books & journal articles
  • Transportation planning and the Clean Air Act.
    • United States
    • Environmental Law Vol. 25 No. 3, June 1995
    • June 22, 1995
    ...(128) Id. at 268-69. (129) 752 F.2d 1444 (9th Cir.), modified, 778 F.2d 527 (9th Cir. 1985). (130) Id. at 1446. (131) Id. at 1455. (132) 832 F.2d 1071 (9th Cir. 1987). (133) This area has some of the nation's most serious air pollution problems, especially for ozone and carbon monoxide. A 1......
  • Are insignificant emissions significant? Western States Petroleum Ass'n v. EPA: the air operating permit program of the Clean Air Act.
    • United States
    • Environmental Law Vol. 27 No. 3, September - September 1997
    • September 22, 1997
    ...of the duty to independently examine and implement control measures targeting the 24-hour standard NAAQS). (33) Abramowitz v. EPA, 832 F.2d 1071, 1074 (9th Cir. 1987) (holding that EPA's decision to approve California's South Coast Air Basin ozone and carbon monoxide control measures was ar......
  • Paradise delayed - the continuing sage of the Los Angeles Basin Federal Clean Air Implementation Plan.
    • United States
    • UCLA Journal of Environmental Law & Policy Vol. 14 No. 2, December 1996
    • December 22, 1996
    ...Reg. 5074, 5082-83 (1983). (40.) Id. at 5074. (41.) 49 Fed. Reg. 30,300 (1984). (42.) Id. at 30,305. (43.) Id. (44.) Abramowitz v. EPA, 832 F2d 1071 (9th Cir. 1987). The court stated: "[T]he existing record reveals no effort on the part of the state to submit new proposals for SIP revisions......
  • Southern California's quest for clean air: is EPA's dilemma nearing an end?
    • United States
    • Environmental Law Vol. 24 No. 3, July 1994
    • July 1, 1994
    ...amended at 42 U.S.C. [subsections] 7401-7462 (1988)). (7.) Id [sections] 4(a), 42 U.S.C. [sections] 7407(a)-(c). (8.) Abramowitz v. EPA, 832 F.2d 1071, 1073 (9th Cir. 1987) (citing 36 Fed. Reg. 8186 (1971) (codified at 40 C.F.R. [subsections] 50.8, 50.9 (1992)). (9.) Clean Air Act Amendment......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT