Com. of Va. v. U.S., 95-2229

Decision Date02 February 1996
Docket NumberNo. 95-2229,95-2229
PartiesCOMMONWEALTH OF VIRGINIA; George Allen, Governor of the Commonwealth of Virginia, Plaintiffs-Appellants, v. UNITED STATES of America; Environmental Protection Agency; Department of Transportation; Carol M. Browner, Administrator of the United States Environmental Protection Agency, in Her Official Capacity; Federico F. Pena, Secretary, Department of Transportation, Secretary of Transportation, in His Official Capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. SPENCER, District Judge. (CA-95-21-3).

ARGUED: Roger Lewis Chaffe, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellants. Jeffrey Paul Kehne, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: James S. Gilmore, III, Attorney General of Virginia, John Paul Woodley, Jr., Deputy Attorney General, Mary J. Leugers, Assistant Attorney General, John R. Butcher, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia; John P. Schmitz, Andrew J. Pincus, Charles A. Rothfeld, Gregory S. Walden, Thomas Dilenge, Washington, D.C., for Appellants. Lois J. Schiffer, Assistant Attorney General, David J. Kaplan, Albert M. Ferlo, Jr., Environment & Natural Resources Division, United States Department

                of Justice, Washington, D.C.;   Jan M. Tierney, Michael W. Thrift, Office of the General Counsel, United States Environmental Protection Agency, Washington, D.C.;   Cecil A. Rodrigues, Office of the Regional Counsel, United States Environmental Protection Agency, Philadelphia, Pennsylvania;  Diane K. Mobley, Office of the Chief Counsel, Federal Highway Administration, United States Department of Transportation, Washington, D.C., for Appellees
                

Before POWELL, * Associate Justice (Retired), United States Supreme Court, sitting by designation, and MURNAGHAN and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge MURNAGHAN joined.

OPINION

MICHAEL, Circuit Judge:

The Commonwealth of Virginia brought suit in the Eastern District of Virginia to challenge the constitutionality of various provisions of the Clean Air Act (CAA), 42 U.S.C. Sec. 7401 et seq. According to Virginia, Title I and Title V of the CAA violate the Constitution's Spending Clause (art. I, Sec. 8, cl.1), Guarantee Clause (art. IV, Sec. 4) and Tenth Amendment. The district court dismissed the case without prejudice for lack of subject matter jurisdiction on the ground that CAA Sec. 307(b)(1), 42 U.S.C. Sec. 7607(b)(1), places exclusive jurisdiction with this court. Because Virginia could have brought its constitutional claims directly before this court through a petition for review of final action of the Administrator of the Environmental Protection Agency, we affirm.

I.

Virginia says, "This action arises out of two major ongoing disputes with EPA regarding the Commonwealth's compliance with the federal [CAA]." One dispute, according to the complaint, involves Virginia's "alleged failure to develop and submit to EPA an approvable" vehicle inspection and maintenance (I & M) program and a volatile organic compound (VOC) reduction plan for Northern Virginia and Richmond. The other dispute involves Virginia's "alleged failure to develop and submit to EPA an approvable Title V [stationary pollution source] operating permit program." Compl. pp 1-2. Before we get to jurisdiction--the only issue before us today--some discussion of the pollution targeted here and CAA mechanisms for reducing that pollution is helpful.

The chief mischief-maker here is ozone, the pollutant that most often causes a particular region's air to violate federal standards. Ozone is one of the primary components of smog. In sufficiently high concentrations, ozone causes chest pains, coughing, nausea, irritation of the throat and increased susceptibility to respiratory infection. Clean Air Act Standards: Hearing Before the Subcomm. on Health and the Environment of the House Comm. on Energy and Commerce ("Clean Air Act Standards Hearing "), 101st Cong., 1st Sess. 14-16 (1989) (statement of Don R. Clay, EPA acting administrator for air and radiation). Excessive ozone can also damage forests and food crops. Id. at 16-18. 1

Ozone is formed when volatile organic compounds (VOCs) react with nitrogen oxides in the presence of sunlight and heat. See Joseph Nordman, What Is Chemistry? A Chemical View of Nature 306 (1974). "VOC is the collective name given to pollutants that [contain carbon and] are gases at room temperature." Dashefsky, supra at 259. Automobile exhaust is a VOC source. See Nordman, supra at 315 (table). 2 Although most nitrogen oxides are made naturally, automobile exhaust increases atmospheric nitrogen oxide levels. Nordman, supra at 314. Thus, automobile exhaust, as a source of both VOCs and nitrogen oxides, is a major cause of increased ozone levels. Clean Air Act Standards Hearing, supra at 30 (statement of Don Theiler, President, State and Territorial Air Pollution Program Administrators); Dashefsky, supra at 196. Because by 2010 the number of miles driven in the United States will increase by an estimated 60 percent, the nation faces a real potential for ever-increasing amounts of pollution from automobile exhaust. Clean Air Act Standards Hearing, supra at 2 (statement of Rep. Waxman) ( "Gains we have made in the past may be lost in an expanding cloud of auto exhaust." ).

The CAA authorizes the EPA Administrator to promulgate national ambient air quality standards (NAAQS). CAA Secs. 108 & 109, 42 U.S.C. Secs. 7408 & 7409. An area that does not meet the minimum level of air quality mandated by the NAAQS is considered to be a "nonattainment area." CAA Secs. 107(d) & 171(2), 42 U.S.C. Secs. 7407(d) & 7501(2). With respect to the pollutant ozone, an area's degree of nonattainment may be classified as marginal, moderate, serious, severe or extreme. CAA Sec. 181(a), 42 U.S.C. Sec. 7511(a).

By 1989 more than 90 of the nation's urban areas were in nonattainment of the NAAQS for ozone, raising a health concern for as many as 95 million Americans. Clean Air Act Standards Hearing, supra at 30 (statement of Don Theiler). As a result, Congress in 1990 extensively amended the CAA in an effort to cope with the increasingly severe problem of unhealthy ozone levels throughout the country. See Clean Air Act Amendments of 1990, Pub.L. No. 101-549, 104 Stat. 2399.

The CAA's complex statutory and regulatory scheme calls upon the states to shoulder a large portion of the difficult task of cleaning up the nation's air. The 1990 amendments extended deadlines (that had existed under earlier versions of the CAA) for states to reach full attainment with respect to ozone levels and set new deadlines for states to achieve lesser (but still nonattaining) reductions of ozone. CAA Secs. 181-185B, 42 U.S.C. Secs. 7511-7511f. The 1990 amendments also encourage states to design and implement an operating permit program intended to regulate stationary sources of air pollution, such as factories and power plants. CAA Secs. 501-507, 42 U.S.C. Secs. 7661-7661f.

A.

Under Title I of the CAA, if a state has an area within it that EPA has classified as being in moderate, serious or severe nonattainment with respect to ozone, the state must devise and implement a "state implementation plan" (SIP) that reduces VOC emissions within the area by 15 percent (a "15% Plan" ). CAA Secs. 182(b)(1)(A)(i), 182(c) & 182(d); 42 U.S.C. Secs. 7511a(b)(1)(A)(i), 7511a(c) & 7511a(d). The SIP must include a program of vehicle inspection and maintenance that will reduce automobile exhaust's contribution to air pollution (an "I & M Program" ). CAA Sec. 182(b)(4), 42 U.S.C. Sec. 7511a(b)(4).

Title I imposes sanctions on states that fail to comply with its provisions. States may, for example, be prevented from spending federal highway money in nonattainment areas. See CAA Secs. 110(m), 176(c) & 179(b)(1); 42 U.S.C. Secs. 7410(m), 7506(c) & 7509(b)(1). This loss of highway money is automatic and mandatory if the state fails to implement an adequate SIP within 24 months of EPA's finding that a proposed SIP is deficient. CAA Sec. 179(b)(1), 42 U.S.C. Sec. 7509(b)(1). Even before this two-year period expires, EPA may (after first going through a notice-and-comment rulemaking proceeding) block the state from spending federal highway funds in nonattainment areas. CAA Sec. 110(m), 42 U.S.C. Sec. 7410(m). However, highway money may not be blocked--under either the mandatory or the discretionary sanction provisions--for projects that "likely will result in a significant reduction in, or avoidance of, accidents." CAA Sec. 179(b)(1)(A), 42 U.S.C. Sec. 7509(b)(1)(A). Nor may money be blocked if it is to be spent on transportation projects that would encourage conservation and that would tend to result in less pollution from automobiles, i.e., public transit programs, development of park-and-ride facilities, construction of high-occupancy vehicle lanes and the like. CAA Sec. 179(b)(1)(B), 42 U.S.C. Sec. 7509(b)(1)(B).

A state's failure to submit a valid SIP also causes the EPA to subject private industry to more stringent permitting requirements. CAA Sec. 179(b)(2), 42 U.S.C. Sec. 7509(b)(2). 3 This sanction is mandatory after 18 months and (as with the highway sanction) is discretionary at any time after EPA has found a proposed SIP to be inadequate. See CAA Sec. 110(m), 42 U.S.C. Sec. 7410(m).

Finally, if two years pass after a SIP is first found to be deficient or the state's submission of a proposed SIP to EPA is found to be administratively incomplete, EPA must impose a "federal implementation program" (FIP) on those areas of a state that are in nonattainment. CAA Sec. 110(c)...

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