Coalition for Clean Air v. Southern California Edison Co.

• Decision Date: 10 April 1992
• Docket Number: Nos. 91-55383,91-55386 and 91-55634,s. 91-55383
• Citation: 971 F.2d 219
• Parties: , 22 Envtl. L. Rep. 21,274 COALITION FOR CLEAN AIR; Sierra Club, Inc., Plaintiffs-Appellants, v. United States Environmental Protection Agency, Defendant-Appellee, and South Coast Air Quality Management District, Defendant-Intervenor, v. SOUTHERN CALIFORNIA EDISON COMPANY; Southern California Gas Company; Southern California Association of Governments, Plaintiff-Intervenors. COALITION FOR CLEAN AIR; Sierra Club, Inc., Plaintiffs-Appellees, Southern California Edison Company; Southern California Gas Company; Southern California Association of Governments, Plaintiff-Intervenors-Appellees, v. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, Defendant-Intervenor-Appellant, United States Environmental Protection Agency, et al., Defendants. COALITION FOR CLEAN AIR; Sierra Club, Inc., Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee, v. SOUTHERN CALIFORNIA EDISON COMPANY, Plaintiff-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 219

971 F.2d 219

35 ERC 1609, 22 Envtl. L. Rep. 21,274

COALITION FOR CLEAN AIR; Sierra Club, Inc., Plaintiffs-Appellants, v. United States Environmental Protection Agency, Defendant-Appellee, and South Coast Air Quality Management District, Defendant-Intervenor, v. SOUTHERN CALIFORNIA EDISON COMPANY; Southern California Gas

Company; Southern California Association of

Governments, Plaintiff-Intervenors.

COALITION FOR CLEAN AIR; Sierra Club, Inc., Plaintiffs-Appellees,

Southern California Edison Company; Southern California Gas

Company; Southern California Association of

Governments, Plaintiff-Intervenors-Appellees, v. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT,

Defendant-Intervenor-Appellant,

United States Environmental Protection Agency, et al., Defendants.

COALITION FOR CLEAN AIR; Sierra Club, Inc., Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee, v. SOUTHERN CALIFORNIA EDISON COMPANY, Plaintiff-Intervenor-Appellee.

Nos. 91-55383, 91-55386 and 91-55634.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 10, 1992. ^*

Decided July 1, 1992.

Alan Waltner, Gorman & Waltner, Oakland, Cal., for plaintiffs-appellants-appellees.

Colin Lennard, Morrison & Foerster, Los Angeles, Cal., for plaintiffs-intervenors-appellants-appellees.

Karen L. Egbert, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee-appellant.

Peter M. Greenwald, Dist. Counsel, Diamond Bar, Cal., for defendant-intervenor-appellant.

Joseph J. Brecher, Oakland, Cal., Michael D. Rowe, Environment and Natural Resources Div., Washington, D.C., Mary L. Grad, Asst. U.S. Atty., Sacramento, Cal., for amici curiae.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, NORRIS and NOONAN, Jr., Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

California's South Coast Air Basin has the dirtiest air in the United States. ¹ Twenty-two years have passed since Congress first enacted legislation requiring implementation plans to attain national air quality standards, and yet today the South Coast still lacks implementation plans for ozone and carbon monoxide. In 1989, EPA entered into a settlement agreement with appellants requiring it to perform its statutory duty and promulgate federal implementation plans for the South Coast on an expeditious schedule. EPA now argues that, when Congress passed the Clean Air Act Amendments of 1990, it relieved EPA of this obligation and returned the implementation plan process to square one. We disagree and reverse the district court's decision vacating the settlement agreement and dismissing the case. Coalition for Clean Air v. EPA, 762 F.Supp. 1399 (C.D.Cal.1991). We remand to the district court for reinstatement of the agreement and direct the court to establish an expeditious schedule for EPA to promulgate final implementation plans for the South Coast.

I

The Clean Air Act was passed in 1963, but it was the Clean Air Amendments of 1970, Pub.L. No. 91-604, 84 Stat. 1676 (1970), that gave the Clean Air Act the basic structure it retains today. See generally Train v. NRDC, 421 U.S. 60, 63-64, 95 S.Ct. 1470, 1474-1475, 43 L.Ed.2d 731 (1975) (discussing pre-1970 statutes). The 1970 Amendments created "a federal-state partnership for the control of air pollution." Abramowitz v. EPA, 832 F.2d 1071, 1073 (9th Cir.1987). Section 109 of the Act, as amended, directed EPA to establish National Ambient Air Quality Standards ("NAAQS") for any air pollutants that might endanger public health or welfare. Clean Air Act ("CAA") § 109, 84 Stat. at 1679-80. EPA issued NAAQS for six pollutants in 1971, including carbon monoxide ("CO") and ozone. ² Responsibility for meeting these standards fell, in the first instance, to the states, which were required to submit State Implementation Plans ("SIPs") by 1972 that would provide for attainment of the NAAQS by 1975. CAA § 110(a)(1), 84 Stat. at 1680. EPA was required to review the SIPs and to disapprove any that failed to meet the requirements of the Act, including the attainment of NAAQS by the statutory deadline. CAA § 110(a)(2), 84 Stat. at 1680-81. If EPA disapproved a SIP, the 1970 Amendments required that EPA adopt a Federal Implementation Plan ("FIP") that would meet the requirements of the Act and take the place of the disapproved SIP. CAA § 110(c), 84 Stat. at 1681-82.

In February 1972, California submitted a SIP for the South Coast to EPA. On May 31, 1972, EPA announced its disapproval of major portions of the SIP. 37 Fed.Reg. 10,842, 10,851-10,855 (1972). At that point, EPA was statutorily required to adopt a FIP for the South Coast but failed to act. As the result of a citizens' suit, EPA was placed under a court order to prepare a FIP by January 15, 1973 that would provide for attainment of NAAQS no later than 1977. Riverside v. Ruckelshaus, Civ. No. 72-2122-H, 4 Envt'l Rep.Cas. (BNA) 1728, 1731 (C.D.Cal. Nov. 16, 1972). During 1973, EPA issued several proposed FIPs that contained extreme provisions including gas rationing. See, e.g., 38 Fed.Reg. 2194, 2194-2200 (1973); 38 Fed.Reg. 31,232, 31,232-31,255 (1973). On October 15, 1976, EPA revoked its proposed gas rationing regulations, which were due to take effect in 1977, because of "the seriously disruptive social and economic consequences of such regulations," in spite of the fact that the revocation would "render the affected [implementation plans] defective as a legal matter, since such [plans] will no longer contain regulations which provide for NAAQS attainment." 41 Fed.Reg. 45,565 (1976).

Faced with widespread failure by the states to attain NAAQS, Congress amended the Clean Air Act again in 1977, to give "nonattainment" areas more time. Pub.L. No. 95-95, 91 Stat. 685 (1977). The deadline for NAAQS attainment was extended to 1982. CAA § 172, 91 Stat. at 746-48. On July 25, 1979, California submitted a SIP for the South Coast Air Basin requesting an extension of the ozone and CO attainment dates to 1987. EPA proposed to disapprove the SIP because California had failed to adopt a motor vehicle inspection and maintenance program, which was required as a condition for granting such an extension. 45 Fed.Reg. 21,271, 21,271-21,282 (1980). EPA took final action disapproving the SIPs for ozone and CO on January 21, 1981. 46 Fed.Reg. 5965, 5975 (1981).

In 1982, California submitted extensive revisions to its proposed South Coast SIPs for ozone and CO. These 1982 proposed SIPs acknowledged that even if the plans were fully implemented, the South Coast would fail to attain the ozone and CO NAAQS by 1987. 48 Fed.Reg. 5074, 5082-5083 (1983). On February 3, 1983, EPA proposed to disapprove the 1982 SIPs. Id. at 5074. California submitted further revisions, and EPA took final action on July 30, 1984, approving the CO and ozone control measures without requiring any demonstration that those measures would achieve attainment by the statutory deadline. EPA simply noted that it was deferring any final approval or disapproval of the SIP's attainment provisions. 49 Fed.Reg. 30,300, 30,305 (1984); see Abramowitz, 832 F.2d at 1074.

In September 1984, a citizen timely petitioned this court for review of the EPA's 1984 decision. We held that "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." Abramowitz, 832 F.2d at 1072-73. We remanded "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." Id. at 1073. In compliance with our order, EPA disapproved the South Coast SIPs for ozone and CO on January 22, 1988, triggering once again EPA's statutory obligation to adopt FIPs for the South Coast Air Basin. 53 Fed.Reg. 1780 (1988).

On February 22, 1988, appellants Coalition for Clean Air and the Sierra Club filed this citizens' suit to enforce EPA's obligation to promulgate ozone and CO FIPs for the South Coast. In March 1989, EPA entered into a settlement agreement with plaintiffs, which obligated it to prepare, propose, and promulgate final FIPs for the South Coast. Because of the 1989 San Francisco earthquake, the district court extended EPA's deadline for publishing the proposed FIPs from April 30 to July 31, 1990. EPA finally published the proposed FIPs on September 5, 1990, and agreed to finalize them by February 28, 1991. 55 Fed.Reg. 36,458, 36,458-36,576 (1990).

In the meantime, EPA sought across-the-board relief from its statutory obligation to promulgate FIPs from Congress, which had begun to consider new amendments to the Clean Air Act. In September 1989, at EPA's urging, the Senate passed an amendment that would have left promulgation of FIPs to EPA's discretion. See S. 1630, 101st Cong., 1st Sess., § 105 (1989). In May 1990, a House Committee deleted this language, which prompted a letter from EPA Administrator Reilly complaining that the House action would require promulgation of a FIP imposing "across-the-board, draconian measures devastating the country's largest industrial area," an obvious reference to the South Coast Air Basin. 136 Cong.Rec. H2771, H2887 (daily ed. May 23, 1990). However, Administrator Reilly's complaint went unheeded by Congress. The House language retaining EPA's mandatory obligation to promulgate a FIP whenever it disapproves a SIP was ultimately enacted by Congress and signed into law by President Bush on November 15, 1991 as part of the Clean Air Act Amendments of 1990. Pub.L. No. 101-549, 104 Stat. 2399 (1990).

On November 30, 1991, EPA filed a motion asking the district court to vacate the settlement agreement and dismiss the case on the basis of the 1990 Amendments. EPA argued that Congress could not have intended to continue EPA's obligation to promulgate FIPs for the South Coast under...