Citizens for a Better Environment v. Deukmejian, C89-2044 TEH

• Decision Date: 05 March 1990
• Docket Number: No. C89-2044 TEH,C89-2064 TEH.,C89-2044 TEH
• Citation: 731 F. Supp. 1448
• Court: U.S. District Court — Northern District of California
• Parties: CITIZENS FOR A BETTER ENVIRONMENT, et al., Plaintiffs, v. George DEUKMEJIAN, Defendants. SIERRA CLUB, Plaintiff, v. METROPOLITAN TRANSPORTATION COMMISSION, et al., Defendants.

731 F. Supp. 1448

CITIZENS FOR A BETTER ENVIRONMENT, et al., Plaintiffs, v. George DEUKMEJIAN, Defendants.

SIERRA CLUB, Plaintiff, v. METROPOLITAN TRANSPORTATION COMMISSION, et al., Defendants.

Nos. C89-2044 TEH, C89-2064 TEH.

United States District Court, N.D. California.

March 5, 1990.

COPYRIGHT MATERIAL OMITTED

Alan Ramo, Citizens for a Better Environment, Nicholas C. Arguimbau, Robert M. Teets, Jr., San Francisco, Cal., for Citizens for a Better Environment.

William S. Curtis and Alan Waltner of Gorman & Waltner, Oakland, Cal., for Sierra Club.

Francis Chin, Gen. Counsel, Melanie Morgan, Associate Gen. Counsel, Metropolitan Transp. Com'n, Oakland, Cal., John F. Powell, Counsel, Laurence G. Chaset, Senior Asst. Counsel, Thomas H. Crawford, Asst. Counsel, Bay Area Air Quality Management Dist., John K. Van De Kamp, Atty. Gen., Robert H. Connett, Asst. Atty. Gen., M. Anne Jennings, Deputy Atty. Gen., Charlotte Uram, Robert L. Hines, Landels, Ripley & Diamond, San Francisco, Cal., David P. Novello, U.S. E.P.A., Washington, D.C., Robert D. Wyatt, David D. Cooke, Kimberly M. McMorrow, Brobeck, Phleger & Harrison, San Francisco, Cal., for defendants.

OPINION AND ORDER

THELTON E. HENDERSON, District Judge.

In 1982, state and local agencies prepared a plan for achieving federal Clean Air Act standards in the San Francisco Bay Area. This "1982 Bay Area Air Quality Plan" is the subject of these consolidated actions brought pursuant to section 304 of the Clean Air Act ("Act"), 42 U.S.C. § 7604. Plaintiffs, Citizens for a Better Environment ("CBE") and the Sierra Club, contend that there is no genuine dispute that defendants have failed to carry out several provisions of the 1982 Bay Area Air Quality Plan. They seek a summary judgment on liability, as well as imposition of a remedial scheme.

As the moving party, plaintiffs must demonstrate that no triable facts exist, and that they are entitled to judgment as a matter or law. Fed.R.Civ.P. 56. Defendants may defeat summary judgment by setting forth specific facts showing that genuine issues remain for trial. Great Hawaiian Financial Corp. v. Aiu, 863 F.2d 617, 619 (9th Cir.1988) (per curiam). Simply raising "some metaphysical doubt" as to the material facts will not suffice. Allstate Insurance Co. v. Gilbert, 852 F.2d 449, 453 (9th Cir.1988). Having carefully considered the parties' written and oral arguments, plaintiffs' motions are granted in part, and denied in part, for the reasons set forth below.¹

I. The Federal Clean Air Act

There is little more basic in life than the air we breath; yet early efforts by the states to control the "serious" and "unchecked" problem of air pollution met with only disappointing results. A frustrated Congress responded in 1970 by passing stringent amendments to the Clean Air Act. 42 U.S.C. §§ 7401 et seq; Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 249, 256, 96 S.Ct., 2518, 2522, 2525, 49 L.Ed.2d 474 (1976); Train v. Natural Resources Defense Counsel, Inc., 421 U.S. 60, 63-65, 95 S.Ct. 1470, 1474-75, 43 L.Ed.2d 731 (1975).

The amendments directed the United States Environmental Protection Agency ("EPA") to set limits on the atmospheric concentrations that can be tolerated for pollutants that may endanger public health and welfare. 42 U.S.C. §§ 7408(a)(1)(A), 7409(b)(1). Train, 421 U.S. at 65, 95 S.Ct. at 1475. These limits, termed National Ambient Air Quality Standards or "NAAQS," represent the minimum standards deemed necessary to protect the public health and welfare. 42 U.S.C. § 7409(b)(1). NAAQS have been established for both carbon monoxide and ozone, two of the most harmful air pollutants.

Most are familiar with smog creating carbon monoxide, caused almost exclusively by vehicle exhaust fumes. 1982 Plan at 2. Less well known, albeit amply documented, are the detrimental effects of ozone which is formed by complex photochemical reactions involving hydrocarbons, nitrogen oxides, and sunlight. When present near ground level, ozone impairs lung functions, reduces resistance to infection, exacerebates asthma, bronchitis, and emphysema, alters blood chemistry or chromosome structure, destroys vegetation, reduces crop yield, and causes exposed materials to crack, fade and weather. It is also a prime ingredient of smog. United States v. Ford Motor Co., 814 F.2d 1099, 1101 (6th Cir.1987); Nat'l Resources Defense Counsel, Inc. ("NRDC") v. New York State Dep't of Environmental Conservation, 668 F.Supp 848, 850 (S.D.N.Y.1987); see also, Air Resources Board, "Ambient Air Quality Standard for Ozone: Health and Welfare Effects" (September 1987);² 17 Cal.Admin.Code § 70200.

Once NAAQS were promulgated, the amendments required every state to develop, and submit for EPA approval, a State Implementation Plan or "SIP" for achieving and maintaining NAAQS no later than 1977. When it became evident that many states, including California, would not meet the 1977 deadline, Congress amended the Act again, this time mandating states with "nonattainment areas" to submit, by January 1, 1979, revised SIPs that contained strategies for achieving NAAQS no later than December 31, 1982.

States with especially severe pollution problems could receive an additional extension to December 31, 1987, if their revised SIPs demonstrated that NAAQS could not be attained by 1982, despite implementation of all reasonably available control measures. 42 U.S.C. § 7502(a)(2); Delaney v. EPA, 898 F.2d 687 (9th Cir.1990). However, "cognizant of the already lengthy history of delays and disappointments that had characterized previous efforts to combat pollution," Connecticut Fund for Environment, Inc. v. EPA, 672 F.2d 998, 1001 (2nd Cir.1982), cert. denied sub nom., 459 U.S. 1035, 103 S.Ct. 445, 74 L.Ed.2d 601 (1982), this extra extension was conditioned on states submitting a second revised SIP by July 1, 1982, which contained additional cleanup provisions and enforceable measures to assure attainment of NAAQS by 1987. 42 U.S.C. § 7502(c); American Lung Ass'n v. Kean, 670 F.Supp 1285, 1288 (D.N.J.1987), aff'd, 871 F.2d 319 (1989).

Again, California failed to meet the Clean Air Act deadlines. It did not submit a revised SIP by January 1979, and the SIP it ultimately presented was disapproved by EPA in 1980. Once EPA finally approved a second revised SIP in 1983, the State was required to carry it out. American Lung Ass'n, 871 F.2d at 322 ("SIPs are not merely advisory; once EPA approves a SIP the state is obligated to comply with it"); 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); NRDC v. New York, 668 F.Supp. at 850-51.³

That portion of the SIP applicable to the San Francisco Bay region (a "non-attainment area") is the "1982 Bay Area Air Quality Plan" ("1982 Plan" or "Plan"). Prepared by defendants Bay Area Air Quality Management District ("District" or "BAAQMD"), the Metropolitan Transportation Commission ("MTC"), and the Association of Bay Area Governments ("ABAG"),⁴ it contained a "technically justified program that adopts and commits to implement control measures that will result in the attainment of the 03 ozone and CO carbon monoxide standards no later than 1987, and will provide for reasonable further progress in the interim ..." 1982 Plan at 33 (emph. added); see also Plan at 1. It is now 1990 — twenty years after the 1970 amendments to the Clean Air Act, and two years after the 1987 deadline — and the San Francisco Bay Area, while perhaps not the worst offender, still has not attained NAAQS for either ozone or carbon monoxide.⁵

II. The 1982 Plan

According to the 1982 Plan, the Bay Area would attain NAAQS by 1987 primarily through a motor vehicle inspection and maintenance program (I/M Program) and implementation of control measures which, in combination, would reduce hydrocarbon emissions by 85 tons/day. Plan at 101, and Table 1. In the event the Bay Area failed to make sufficient progress toward attaining NAAQS, the Plan called for the implementation of contingency measures to further reduce emissions from both the transportation and stationary source sectors. Plan at 3.

A. Stationary source controls

Most of the 85 tons/day reduction (56 tons) was to be attained through the phasing in of control measures for 23 stationary sources of hydrocarbon emissions between 1983 and 1987. As of September 19, 1989, controls for four of these sources — which were to account for over 20 percent of the 56 ton/day reduction — had yet to be adopted, much less implemented. They are summarized as follows:

                  (1) reciprocating engines
                    (4.0 tons/day)
                    — scheduled adoption date: 1984
                  (2) pesticides
                    (3.7 tons/day)
                    — scheduled adoption date: 1984
                  (3) consumer solvents
                    (4.0 tons/day)
                    — scheduled adoption date: 1985
                  (4) large commercial bakeries
                    (1.1 tons/day)
                    — scheduled adoption date: 1986
                

The remaining 29 tons/day reduction was to be accomplished through the I/M Program, which is not at issue in this case. Plan at 94, 101.

B. Contingency plans

If interim reports showed the Bay Area was not making "reasonable further progress" ("RFP") toward attaining NAAQS or that adoption of required measures had been delayed, the Plan called for the adoption and implementation of contingency measures. 1982 Plan at 3, 34, 101, 150. With respect to stationary sources, the Plan identifies several potential additional measures for reducing ozone, beyond the mandated 23 measures, although other unidentified measures could be adopted as well. Plan at 99, 101. A number of such contingency measures were adopted or are to be considered for adoption; however, plaintiffs contend that more measures are necessary to attain NAAQS.

With respect to the transportation sector, the Plan calls for MTC to consider delaying highway projects that are shown to have a significant adverse impact on air quality. It also requires MTC to adopt enough ...