Coalition for Clean Air v. EPA, CV88-4414-HLH.

• Decision Date: 09 January 1991
• Docket Number: No. CV88-4414-HLH.,CV88-4414-HLH.
• Citation: 762 F. Supp. 1399
• Parties: COALITION FOR CLEAN AIR, et al. v. ENVIRONMENTAL PROTECTION AGENCY.
• Court: U.S. District Court — Central District of California

762 F. Supp. 1399

COALITION FOR CLEAN AIR, et al. v. ENVIRONMENTAL PROTECTION AGENCY.

No. CV88-4414-HLH.

United States District Court, C.D. California.

January 9, 1991.

Alan Waltner, Oakland, Cal., for plaintiffs.

Karen L. Egbert, Dept. of Justice, Washington, D.C., and Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for E.P.A.

Colin Lennard, Los Angeles, Cal., for SCAB.

Peter M. Greenwald, El Monte, Cal., for SCAQMD.

Henrietta Mosley, Los Angeles, Cal., for S.C. Gas Co.

R. Lannen, Rosemead, Cal., for S.C. Edison.

ORDER

HUPP, District Judge.

The motion to vacate the settlement agreement and dismiss the action is granted. The action is dismissed.

The question is whether Congress, in enacting the 1990 amendments to the Clean Air Act (hereafter the "Act"), intended to require that a Federal Implementation Plan (FIP) prepared under the new criteria in the amended Act be promulgated by EPA before there is rejected for non-compliance with the Act by EPA a State Implementation Plan (SIP) hereafter to be prepared under the new criteria and timing schedules in the amended version of the Act.

Under the former version of the Act, the State's plan for the South Coast Air Basin (SCAB) was rejected (Abramowitz v. United States Environmental Protection Agency, 832 F.2d 1071) (9th Cir.1987) and EPA acquired the obligation under the former version of the Act to prepare a FIP. Plaintiffs brought this action to compel EPA to prepare the FIP. EPA recognized its obligation to do so, and an agreement was entered into, approved by the court on March 28, 1989, which set the date for promulgation of the FIP by EPA, since extended to Feb. 28, 1991. In September, 1990, EPA published in the Federal Register its tentative FIP for comment. However, Congress passed extensive amendments to the Act which were signed into law by the President on Nov. 15, 1990. The amendments to the Act change numerous standards which States must meet, set forth new schedules for the submission of SIP's, and continues the provision that if the State fails to submit a plan, or a State SIP is disapproved, the EPA shall prepare a FIP (now, within 2 years of disapproval), or may instead approve a State proposed revision to the SIP (this latter provision is significant because it is clear that California continues to submit significant revisions to its rejected SIP to EPA, including the epochal 1989 plan developed by South Coast Air Quality Management District (SCAQMD)). Thus, the method of enforcement (a federal plan if the state does not come up with an acceptable one) is preserved from the former Act, but EPA has more time, opportunity, and flexibility to develop its own plan or approve State modifications. The difficulty presented by this motion is that Congress did not expressly say whether it intended to start the SIP process over again or not, and it is, therefore, in question whether it is Congress' intent in this circumstance that EPA must follow through on the presently pending FIP, even though the State has not had an opportunity to develop its own plan under the new criteria and schedules.

It must be said that the statute is ambiguous. The court makes this determination not alone from the fact that both EPA and plaintiffs argue that the statute is crystal clear and unambiguous—their way. Amended § 110 provides in part that:

"The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator— ... (B) disapproves a State implementation plan in whole or in part ...".

Plaintiffs argue that there is no ambiguity here because the EPA disapproved the old SIP in 1988, and that the EPA plainly owes everyone concerned a FIP. What makes the language ambiguous, however, is that the legislation revamped the schedule for submission of SIPs, allowing time in the future to submit the same and plainly assumes that States which did not have approved SIPs, or imposed FIPs, at the date of the amendments to the Act, were to submit them within the new timetables set forth in the Act. The question, then, is which rejected SIP is the revised § 110 now referring to—the one which was rejected in 1988 or the new one which must be submitted under the new criteria and on the new time schedule? The answer is not provided by a reading, literal or otherwise, of § 110. However, the structure of the amended Act, with revamped criteria and timing for SIPs, and with an obvious policy that the States are encouraged to take the lead, with the potential FIP to be the stick that drives them, is clear. There is an additional reason to believe that revised § 110 refers to the new SIP to be prepared by the States under the revised criteria. If the Act were interpreted otherwise, there would be the anomaly that the SIP prepared by the State under the former criteria and rejected is to be replaced by a FIP prepared under new criteria that the State has never had an opportunity to address. In view of Congressional policy to have States take the lead on preparation of plans, such an interpretation seems less likely than the contrary. From this, it is logical to conclude that the SIP referred to in § 110 is the new SIP required of the States and referred to in other amendments to the Act. The court so concludes.

The court is aided in reaching this result by the usual rule that an administrative agency's interpretation of ambiguous legislation is to be given heavy weight. (Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, 703 (1984).)

The Congressional history is inconclusive. Plaintiffs point out that EPA strongly pushed revision of § 110 to make the FIP discretionary, or eliminate the requirement that one be promulgated on State failure, and that Congress expressly declined to adopt the EPA view. This circumstance appears irrelevant to the question posed on this motion to the court. There is no doubt at all that under the amended Act EPA must prepare a FIP...