Bayview Hunters v. Metropolitan Transp.

• Decision Date: 06 April 2004
• Docket Number: No. 02-17352.,02-17352.
• Citation: 366 F.3d 692
• Parties: BAYVIEW HUNTERS POINT COMMUNITY ADVOCATES; Communities for a Better Environment; Latino Issues Forum; Our Children's Earth Foundation; Sierra Club; Transportation Solutions Defense and Education Fund; Urban Habitat Program; The Tide Center, Plaintiffs-Appellees, v. METROPOLITAN TRANSPORTATION COMMISSION, Defendant-Appellant, and San Francisco Municipal Railway; Alameda-Contra Costa Transit District, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.3d 692

BAYVIEW HUNTERS POINT COMMUNITY ADVOCATES; Communities for a Better Environment; Latino Issues Forum; Our Children's Earth Foundation; Sierra Club; Transportation Solutions Defense and Education Fund; Urban Habitat Program; The Tide Center, Plaintiffs-Appellees, v. METROPOLITAN TRANSPORTATION COMMISSION, Defendant-Appellant, and San Francisco Municipal Railway; Alameda-Contra Costa Transit District, Defendants.

No. 02-17352.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2003.

Filed April 6, 2004.

Amended on Denial of Rehearing and Rehearing En Banc June 2, 2004.^*

COPYRIGHT MATERIAL OMITTED

David D. Cooke, San Francisco, CA (argued); Francis Chin, Oakland, CA; and Melanie Morgan, Oakland, CA, for the defendant-appellant.

Deborah S. Reames, Oakland, CA (argued); Anne C. Harper, Oakland, CA; Suma Peesapati, Oakland, CA; Alan M. Ramo, San Francisco, CA; Helen H. Kang, San Francisco, CA; and Marc S. Chytilo, Santa Barbara, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-01-00750-THE.

Before: HAWKINS, THOMAS, and CLIFTON, Circuit Judges.

CLIFTON, Circuit Judge:

The Metropolitan Transportation Commission plans, coordinates, and finances regional transportation in the San Francisco Bay Area. Over the past twenty five years, MTC has been one of several government agencies responsible for preparing and implementing programs to attain federal air quality standards in the Bay Area in order to comply with the Clean Air Act. One component of a plan initially adopted in 1982 was called Transportation Control Measure 2, or, in the tradition of acronyms which infects both government and environmental regulation, TCM 2. TCM 2 was designed to reduce air pollutants by increasing the use of public transit. The reductions in emissions estimated to result from TCM 2 were predicated on a "target" ridership increase of 15% over 1982-83 ridership levels. In this legal action, Plaintiffs Bayview Hunters Point Community Advocates and others (collectively "Bayview") contend that TCM 2 imposed an enforceable obligation upon MTC to increase ridership by 15% over 1982-83 levels, and that MTC's failure to achieve such an increase constitutes a violation of TCM 2.

The District Court granted summary judgment in Bayview's favor and issued an injunction requiring MTC to achieve a 15% increase in ridership over 1982-83 levels. See Bayview Hunters Point Cmty. Advocates v. Metropolitan Transp. Comm'n, 177 F.Supp.2d 1011 (N.D.Cal.2001) ("Bayview I"); Bayview Hunters Point Cmty. Advocates v. Metropolitan Transp. Comm'n, 212 F.Supp.2d 1156 (N.D.Cal.2002) ("Bayview II"). On appeal, MTC argues that the District Court erred in concluding that TCM 2 constitutes a binding commitment to achieve a 15% increase in public transit ridership.

The language and logic of TCM 2 lead us to conclude that TCM 2 does not impose an enforceable obligation on MTC to increase public transit ridership. We therefore reverse the District Court's judgment and injunction.

I. BACKGROUND

A. Regulatory Framework

The Clean Air Act (CAA) requires the U.S. Environmental Protection Agency (EPA) to promulgate health-based standards for certain pollutants, including hydrocarbons and nitrogen oxides which produce ground level ozone, also known as "smog." These standards are called the National Ambient Air Quality Standards (NAAQS). 42 U.S.C. § 7409(a), (b). Each state is required under the CAA to adopt a State Implementation Plan (SIP) to satisfy the NAAQS requirements. 42 U.S.C. § 7410(a)(1). Specifically, each state is mandated under § 110(a) of the Act, 42 U.S.C. § 7410(a), to adopt a "plan which provides for implementation, maintenance, and enforcement" of the ambient air quality standards and to submit its SIP to the EPA for approval. Each SIP must include enforceable emission limitations and other control measures necessary to attain the NAAQS, as well as timetables for compliance. 42 U.S.C. § 7410(a)(2)(A). A SIP is subject to approval by the EPA to see that it meets the criteria specified in § 7410.

A SIP, "once adopted by a state and approved by the EPA, becomes controlling and must be carried out by the state." Friends of the Earth v. Carey, 535 F.2d 165, 169 (2nd Cir.1976), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977). Approved SIPs are enforceable by either the State, the EPA, or via citizen suits brought under Section 304(a) of the CAA. See Baughman v. Bradford Coal Co., 592 F.2d 215, 217 n. 1 (3d Cir.1979); 42 U.S.C. § 7604(a).

A state may elect to include emission reduction strategies called Transportation Control Measures (TCMs) as part of its SIP. 40 C.F.R. § 51.100(n)(7). A TCM is any measure contained in a SIP whose purpose is to reduce air pollutants from transportation sources (e.g., cars) by reducing vehicle use or changing traffic flow or congestion conditions. See 40 C.F.R. § 93.101.

B. Factual Summary

MTC, the Bay Area Air Quality Management District, and the Association of Bay Area Governments served as co-lead agencies responsible for the preparation and implementation of the 1982 Bay Area Air Quality Plan ("1982 SIP"). The 1982 SIP set forth "an approximate time schedule for adopting and implementing the control programs necessary to attain the federal air quality standards for ozone and carbon monoxide by the 1987 deadline specified by the Clean Air Act." It contained "three categories of minimum control measures as defined by EPA," one of which was "reasonably available transportation control measures." The EPA approved the 1982 SIP in its entirety. 48 Fed.Reg. 57130, 57132 (Dec. 28, 1983).

The 1982 SIP contained ten TCMs that were to be implemented to reduce both hydrocarbon and carbon monoxide emissions region-wide. As one of several measures involving public transportation, TCM 2 dealt with ridership levels. TCM 2 was contained on a single page and provided, in its entirety, as follows:

TCM # 2: Support post-1983 improvements identified in transit operator's 5-year plans, after consultation with the operators adopt ridership increase target for 1983-1987.

EMISSION REDUCTION ESTIMATES: These emission reduction estimates are predicated on a 15% ridership increase. The actual target would be determined after consultation with the transit operators.

[Measurements of emission reductions of hydrocarbons, carbon dioxide, and nitrogen oxide in tons/day]

                       1983    1984     1985     1986     1987
                HC        0     .23      .42      .60      .72
                CO        0    2.03     4.03     5.80     7.15
                NOx       0     .36      .68      .94     1.04
                

COST: Costs of maintaining the existing level of services currently programmed in regional allocations. Ridership increases would come from productivity improvements, thus additional costs would be moderate.

IMPLEMENTATION SCHEDULE:

• 6 major transit operators¹ adopt FY 1983-87 plans by July, 1982.

• MTC consults with operators on ridership targets by Jan., 1983.

• MTC, through implementation of the TIP [Transportation Improvements Plan] and allocation of regional funds, seeks to ensure operators' 5-year plans are implemented.

• Ridership gains are monitored through annual RFP [Reasonable Further Progress] reports.

DESCRIPTION OF CONTROL MEASURE: This measure is basically an extension of TCM # 1. Since federal funds for transit purposes are being cut back, many of the improvements identified in the 5 year plans deal with increased productivity. Thus, while the size of the transit system may not grow significantly, the ridership is expected to increase.

OTHER IMPACTS

• 31,600 gallons of gasoline saved.

• Alternatives to automobile travel will be increased.

MTC subsequently adopted the 15% estimate as the actual target for the ridership increase. But despite the implementation of TCM 2, by 1987 transit ridership had increased by only 6% above the 1982-83 levels, rather than the 15% that was set as the target.

The overall emission reduction estimates set in the 1982 SIP were not met, either. In 1989, two organizations — Communities for a Better Environment and the Sierra Club — filed suit against MTC and related state transit agencies to implement the contingency plan provisions of the 1982 SIP in light of the shortfall in emissions reduction. See Citizens for a Better Env't v. Deukmejian, 731 F.Supp. 1448 (N.D.Cal.1990) ("CBE I"); Citizens for a Better Env't v. Deukmejian, 746 F.Supp. 976 (N.D.Cal.1990) ("CBE II"); and Citizens for a Better Env't v. Wilson, 775 F.Supp. 1291 (N.D.Cal.1991) ("CBE III") (consolidated actions). The District Court determined that "MTC [was] liable for failing to implement the transportation contingency plan," and in turn ordered MTC to "adopt sufficient Transportation Control Measures within six months of September 19, 1989 to bring the region back within the `Reasonable Further Progress' line." CBE 1, 731 F.Supp. at 1461. In February of 1990, MTC adopted 16 "Contingency TCMs."

Air quality monitoring indicated that the Bay Area region satisfied the ozone standards from 1990 to 1992. See 60 Fed.Reg. 27028 (May 22, 1995). In 1993 MTC, the Bay Area Air Quality Management District, and the Association of Bay Area Governments proposed to replace the 1982 SIP with a "maintenance SIP," which the EPA approved on May 22, 1995. See 60 Fed.Reg. 27028 (May 22, 1995). When the Bay Area later fell out of attainment of the ozone NAAQS, MTC and its co-lead agencies prepared a number of revised SIPs — the 1999 Ozone Attainment Plan, the 2001 Proposed Ozone Attainment Plan, and the Revised 2001 Ozone Attainment Plan — aimed at getting back into compliance with the ozone standard.

TCM 2 has remained a part of each subsequently revised Bay Area SIP. Though MTC in preparing its 1999 Ozone Attainment Plan suggested to the EPA that TCM 2 and other older TCMs be removed from the SIP, the EPA...