Delaney v. E.P.A.

• Decision Date: 11 April 1990
• Docket Number: No. 88-7368,88-7368
• Citation: 898 F.2d 687
• Parties: , 20 Envtl. L. Rep. 20,460 Roberta DELANEY; Gayle Hartmann, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 687

898 F.2d 687

31 ERC 1001, 20 Envtl. L. Rep. 20,460

Roberta DELANEY; Gayle Hartmann, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 88-7368.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 26, 1989.

Decided March 1, 1990.

As Amended April 11, 1990.

David S. Baron, Arizona Center for Law in the Public Interest, Tucson, Ariz., for petitioners.

Alan W. Eckert, Associate General Counsel, U.S. Environmental Protection Agency, Washington, D.C., for respondent.

Petition for Review of Action by the Environmental Protection Agency.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Residents of Maricopa and Pima counties, Arizona, petition this court to vacate as arbitrary and capricious the Environmental Protection Agency's approvals of the counties' Clean Air Act implementation plans. We have jurisdiction under 42 U.S.C. Sec. 7607(b)(1) (1982). We vacate the EPA's approvals of the plans, and direct the EPA to take further action consistent with this opinion.

BACKGROUND

The Clean Air Act, as amended in 1970, mandated that states as expeditiously as practicable, but not later than December 31, 1975, reduce the levels of certain ambient pollutants to comply with the National Ambient Air Quality Standards set by the EPA. 42 U.S.C. Sec. 7409(a), (b) (1982). Preliminarily, each state had to develop a state implementation plan to achieve this goal. 42 U.S.C. Sec. 7410(a) (1982).

After many areas of the country failed to attain some or all of the national ambient air quality standards on time, Congress amended the Act in 1977, providing new deadlines for nonattainment areas. 42 U.S.C. Secs. 7501-7508 (1982). The 1977 amendments required states to submit by January 1, 1979, for each of their nonattainment areas, a revised implementation plan that provided for implementation of all reasonably available control measures to attain the relevant national ambient air quality standards as expeditiously as practicable, but not later than December 31, 1982. 42 U.S.C. Sec. 7502. If a state did not submit an adequate revised state implementation plan by the 1979 deadline, the EPA had to promulgate its own federal implementation plan. 42 U.S.C. Secs. 7410(c)(1), 7502(b)(1). The 1977 amendments provided only one exception: If a state demonstrated in its revised implementation plan that the carbon monoxide or ozone ambient air quality standard could not be attained by the close of 1982 despite implementation of all reasonably available control measures, the state could have until the end of 1987 to attain the relevant air quality standard in that nonattainment area. 42 U.S.C. Sec. 7502(a)(2). In that case, the state had to submit a second revised implementation plan to the EPA by July 1, 1982. 42 U.S.C. Sec. 7502(c).

In 1978, the EPA designated large areas of both Maricopa and Pima counties as nonattainment areas for carbon monoxide. In 1979, Arizona submitted revised implementation plans for both areas. In 1983, the EPA approved the plans subject to certain conditions. Neither area, however, satisfied the EPA's conditions or attained the carbon monoxide standard by the 1982 deadline. Arizona failed in its attempt to extend both areas' attainment deadlines to 1987, but submitted additional revised plans for the areas to attain by the 1987 deadline anyway. The EPA rejected these additional revised plans and we upheld that decision. Arizona v. Thomas, 824 F.2d 745 (9th Cir.1987), later proceeding 829 F.2d 834 (9th Cir.1987).

When Arizona thereafter failed to submit adequate plans for Maricopa and Pima counties, petitioners filed suit in the Arizona district court. That court ordered the EPA to promulgate implementation plans for both counties by March 30, 1988 (later extended to August 10, 1988), unless before this date Arizona submitted, and the EPA approved, adequate state plans. McCarthy v. Thomas, No. 85-344 (D.Ariz. August 10, 1987). Arizona submitted, and the EPA ultimately approved (with revisions), state implementation plans for both counties on August 10, 1988. Petitioners now challenge these approvals.

DISCUSSION

We will not set aside the EPA's approval of a state implementation plan unless it is arbitrary, capricious, or otherwise not in accordance with law. 5 U.S.C. Sec. 706(2)(A); Arizona v. Thomas, 824 F.2d at 748. We will not set aside an agency's construction of a statute it is implementing unless that construction conflicts with clear congressional intent or is unreasonable. Chevron USA, Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).

I. The EPA's Decision That Delinquent Nonattainment Areas May Take Three Years From Approval of Their State Implementation Plan to Attain the National Ambient Air Quality Standards

Because the Clean Air Act amendments of 1977 made the 1982 compliance deadline absolute (with the one exception noted above), the amendments did not specify an additional deadline for nonattainment areas that failed to obtain revised implementation plan approval and national ambient air quality standard compliance by the 1982 deadline. In this circumstance, the EPA adopted the policy that it should evaluate the adequacy of the Maricopa and Pima county plans based on whether they provide for attainment by three years from the date it approved those plans, August 10, 1991. Petitioners contend that the EPA's policy is arbitrary and capricious. Now that the 1977 amendments' deadline The EPA contends that Congress expressed no clear intent on the attainment deadline that the EPA should apply in evaluating the Maricopa and Pima county plans because the 1977 amendments did not specify a deadline for nonattainment areas that failed to obtain revised state implementation plan approval and national ambient air quality standard compliance by the 1982 deadline. The EPA argues that this amounts to a "statutory gap." As a result, the EPA believes, we must uphold its policy of allowing compliance within three years of state implementation plan approval because it is a reasonable construction of the 1977 amendments.

for compliance has passed, petitioners assert, Pima and Maricopa Counties must attain the carbon monoxide ambient air quality standard as soon as possible utilizing every available control measure.

The EPA argues that if Congress had considered that some nonattainment areas would not meet the deadline specified in the 1977 Amendments, Congress would have intended that the EPA administratively establish a new three year attainment period from the date of implementation plan approval deadline, like those provided in the Clean Air Act amendments of 1970. The EPA contends that this result is consistent with the language, history, and overall purposes of the Act. The EPA contends that Congress knew some states would not attain by the 1982 deadline and did not intend that states implement draconian measures.

The EPA explains the seemingly absolute nature of the 1977 amendments' 1982 deadline by stating that some legislators felt the need to keep fixed deadlines, even as "somewhat of a legal myth," because they "provide a basis for obtaining maximum progress towards clean air." Transcript, Mark-up, Clean Air Act Amendments, at 13 (May 4, 1977) (Statement of Sen. Domenici), reprinted in State Implementation Plans for Nonattainment Areas for Ozone and Carbon Monoxide: General Preamble and Notice of Future Actions, 52 Fed.Reg. 26,408 (July 14, 1987) [hereinafter "Preamble and Notice"]. If the deadlines turned out not to be realistic, there would be "plenty of time for legislative relief." 123 Cong.Rec. 18,038 (June 8, 1977) (Statement of Sen. Stafford), reprinted in Preamble and Notice, 52 Fed.Reg. 26,408 (July 14, 1987). The EPA contends that petitioners' position would require the draconian measures that Congress allegedly intended to avoid. The EPA argues that, in effect, it is just doing what Congress did in 1977 when, faced with many states' failure to meet attainment deadlines, Congress revised the Clean Air Act, extending those deadlines at least three years.

Although we recognize the EPA's predicament, we cannot accept the EPA's position. As the EPA itself recognizes, Congress explicitly declined to allow extensions of the deadline because it believed an absolute deadline to be necessary. Other circuits have characterized the 1982 deadline as the " 'heart' of the 1977 Amendments," City of Seabrook v. EPA, 659 F.2d 1349, 1357 (5th Cir.1981), cert. denied, 459 U.S. 822, 103 S.Ct. 51, 74 L.Ed.2d 57 (1982), implemented according to a precise schedule to avoid a repetition of the failure of many states to attain the national ambient air quality standards by the deadline specified in the 1970 amendments. Connecticut Fund for the Environment v. EPA, 672 F.2d 998, 1001-02 (2d Cir.), cert. denied, 459 U.S. 1035, 103 S.Ct. 445, 74 L.Ed.2d 601 (1982).

This court has already found the deadlines of the 1977 amendments to be "clear and unambiguous." Abramowitz v. EPA, 832 F.2d 1071, 1079 (9th Cir.1987). We stated:

Because we find the language of the Act clear and unambiguous, we do not believe that EPA has the discretion to ignore the statutory deadline. We are informed by counsel for both sides of their expectation that Congress will extend the deadline once again in the near future, but we must apply the law as it now stands, not as it may become.... Until the Clean Air Act is further considered ... the Agency must "give effect Id. (citations omitted).

to the unambiguously expressed intent of Congress."

We, and the EPA, are bound by the statutory scheme until Congress alters that scheme. As the EPA states in one of its national guidance documents:

[T]he legislative history shows that Congress set up the Part D system in order to force communities and industry to do their utmost to bring about attainment as rapidly as possible and expected that a future...