Environmental Council of Sacramento v. Slater

• Decision Date: 06 November 2000
• Docket Number: No. Civ.S-00-409 LKK/DAD.,Civ.S-00-409 LKK/DAD.
• Citation: 184 F.Supp.2d 1016
• Parties: ENVIRONMENTAL COUNCIL OF SACRAMENTO, Plaintiff, v. Rodney SLATER, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

Page 1016

184 F.Supp.2d 1016

ENVIRONMENTAL COUNCIL OF SACRAMENTO, Plaintiff, v. Rodney SLATER, et al., Defendants.

No. Civ.S-00-409 LKK/DAD.

United States District Court, E.D. California.

November 6, 2000.

Deborah S. Reames, San Francisco, CA, Joseph J. Brecher, Brecher and Volker, Oakland, CA, for Plaintiff.

Norman L. Rave, Jr., U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, Maxine

Fay Ferguson, Department of Transportation, Sacramento, CA, John Thomas Kennedy, III, Nossaman Guthner Knox and Elliott, Stanley W. Kronick, Daniel J. O'Hanlon, Kronick Moskovitz Tiedemann and Girard, Sacramento, CA, David M. Friedland, Gus B. Bauman, David M. Williamson, pro hac vice, Beveridge and Diamond, Washington, DC, for Defendants.

ORDER

KARLTON, Senior District Judge.

Plaintiffs Environmental Council of Sacramento, Sierra Club, and "No-Way L.A." Coalition brought suit to challenge a Clean Air Act conformity determination made by the Sacramento Area Council of Governments ("SACOG") and approved by the United States Department of Transportation ("DOT"), through the Federal Highway Administration ("FHWA") and Federal Transit Administration ("FTA") and by the California Department of Transportation ("Caltrans"). Defendants moved to dismiss the plaintiffs' complaint in part and plaintiffs moved for a preliminary injunction and for summary judgment.¹ I address these motions based on the papers and pleadings filed herein and after oral argument.²

I. THE REGULATORY SCHEME

Because this case lies at the intersection of federal highway aid programs and the Clean Air Act, I begin with a review of the applicable legislative schemes and their interrelation.

A. FEDERAL HIGHWAY AID PROGRAMS

Chapter 1 of Title 23 of the United States Code establishes comprehensive programs to provide federal funding and financial assistance to states for regional and local highway projects. See 23 U.S.C. § 101 et seq. Section 134 of Title 23 requires all urban areas with a population over 50,000 to have a continuous, cooperative, and comprehensive transportation planning process to be carried out by a metropolitan planning organization ("MPO"). Each MPO must prepare a long-range transportation plan, (metropolitan transit plan or "MTP") encompassing at least 20 years, to identify regional transportation needs, develop an integrated transportation system, and assess the capital investments necessary to maintain or construct existing and future roadways or other transit facilities. See 23 U.S.C. § 134(g). The MPO also must develop a more specific transportation improvement program (metropolitan transit improvement program or "MTIP") which lists projects to be carried out over a three-year period and is updated at least every two years. See 23 U.S.C. § 134(h).

B. THE CLEAN AIR ACT

The Clean Air Act ("CAA"), enacted in 1970 and amended in 1977 and 1990, establishes a joint state and federal program to address the nation's air pollution. See 42 U.S.C. §§ 7401 et seq. At the heart of the program are the national ambient air quality standards ("NAAQS"), which are promulgated by the Environmental Protection Agency ("EPA"). See 42 U.S.C. § 7409. The CAA requires the EPA to identify air pollutants that endanger the public health and welfare and to formulate NAAQS that specify the maximum permissible concentrations of those pollutants in the ambient air. See 42 U.S.C. §§ 7408-09. The EPA has promulgated NAAQS for various pollutants, including ozone. See 40 C.F.R. Part 50.

The CAA places primary responsibility for achieving the NAAQS on the states. See 42 U.S.C. § 7407(a). Each state must submit for approval to the EPA a state implementation plan ("SIP") that specifies emission limitations and other control measures necessary for the attainment, maintenance, and enforcement of the NAAQS in each air quality control region within the state. See 42 U.S.C. § 7410(a)(1) and (2). Air quality control regions are designated as either "attainment" or "nonattainment" areas, depending upon whether they meet the NAAQS for a particular pollutant. See 42 U.S.C. § 7407(d). The Sacramento area is a severe nonattainment area for ozone, see 40 C.F.R. § 81.305, and thus NAAQS attainment necessarily entails the reduction of ozone emissions. See 42 U.S.C. § 7410(a)(2) ("Each implementation plan shall ... include ... schedules and timetables for compliance"). The statutory deadline for Sacramento to attain the NAAQS is currently set at November 15, 2005. See 42 U.S.C. § 7511(a)(1).

The Clean Air Act requires coordination between state air pollution control plans and federally-funded transportation plans developed pursuant to the Federal-Aid Highway Act, 23 U.S.C. §§ 101-160. Under the Clean Air Act, transportation projects may not be approved by local transportation planning organizations or funded by the DOT unless the projects are included in a MTP and MTIP that "conform" to applicable state air quality standards. See 42 U.S.C. § 7506(c)(1). This conformity requirement is designed to ensure that federally-funded transportation projects comply with the applicable air quality standards.

Section 176(c) of the Clean Air Act coordinates air quality control and transportation planning through a process known as the conformity determination. See 42 U.S.C. § 7501 et seq. The EPA, with the concurrence of DOT, promulgated regulations to establish procedures for implementing the conformity requirement which are codified at 40 C.F.R. Part 93 Subpart A. In nonattainment areas, the metropolitan planning organization must submit its MTP and MTIP to the FHWA and the FTA, which then determine whether the plan and program "conform" to the applicable SIP. See 42 U.S.C. § 7506(c)(2); 23 C.F.R. §§ 450.322(d), 450.330(b).³ To find conformity, the FHWA and FTA must determine that the emissions expected from implementation of the MTP and/or MTIP are consistent with the emissions budgets set in the state implementation plan, and that the MTP and/or MTIP will not cause or contribute to a new violation of the NAAQS, exacerbate any existing violations of the NAAQS, or delay attainment of the NAAQS. See 42 U.S.C. §§ 7506(c)(2)(A) and (c)(1)(B). The Clean Air Act prohibits the DOT from approving, accepting, or funding any MTP, MTIP, or project that does not conform to the relevant state implementation plan. See 42 U.S.C. §§ 7506(c)(1) and (2). The CAA also provides that the MPO must make its own conformity determination. See 42 U.S.C. §§ 7506(c)(1), (2)(A).⁴

Because Sacramento is a severe nonattainment area for ozone, see 40 C.F.R. § 81.305, it is subject to the CAA conformity requirements. See 42 U.S.C. § 7506(c)(1) and (2). The SACOG is the entity responsible for developing the metropolitan transportation plan (MTP) and metropolitan transit improvement program (MTIP). In July 1999, SACOG adopted a new plan and amendments to the existing MTIP for the Sacramento metropolitan area and submitted the plan and MTIP amendments to the DOT for a conformity determination. By letter dated July 28, 1999, the DOT determined that the MTP and the MTIP amendments conformed to Clean Air Act requirements. As a result of the conformity determination, the federal government approved funding for around fifty-nine transportation projects.

II. THE COMPLAINT

In their complaint, plaintiffs aver that the SACOG underestimated projections of transportation-related ozone emissions when it drafted the Sacramento area's twenty-year metropolitan transit plan ("MTP") and three-year metropolitan transit improvement program ("MTIP") and that the DOT and Caltrans approved these plans based on these unrealistic projections in violation of the conformity requirement of the Clean Air Act. See 42 U.S.C. § 7506(c)(1).

Essentially, plaintiffs allege that defendants relied upon inaccurate estimates of NOx⁵ reductions due to their overestimation of the effectiveness of California's Bureau of Automotive Repairs Enhanced Vehicle Inspection and Maintenance program ("I/M program"). Plaintiffs contend that the ozone reduction attributable to the I/M program is based upon 1994 estimates which have not been updated and do not accurately reflect the effectiveness of the I/M program. The shortfalls are attributable to several sources including underestimates of current vehicle "cutpoints" for NOx, an overestimate of fail rates, the failure of vehicle owners to show up at test-only centers, and legislative changes exempting vehicles up to four years old and predating 1973 from the I/M program. Plaintiffs aver that despite a reduction in the overall impact of the I/M program, the MTP and MTIP continue to project large reductions in NOx emissions based on the 1994 estimates. See First Amended Compl. at ¶¶ 32-34.⁶ As a result, the current MTP and MTIP significantly exceed the level of NOx emissions contained in California's state implementation plan ("SIP"). See id. at ¶ 36.

Although less than pellucid, it appears that plaintiffs advance three causes of action under the citizen suit provision of the Clean Air Act, see 42 U.S.C. § 7604(a) and one under the Administrative Procedures Act, 5 U.S.C. § 702 et seq., which seek to enjoin the DOT from funding a specific number of the around fifty-nine transportation projects contained in the allegedly non-conforming MTP and MTIP.

Additionally, plaintiffs sue under the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. alleging that the environmental impact statements attendant to the funding of the transportation projects contained in the MTP and MTIP were inadequate by virtue of the reliance on the out-of-date information concerning ozone levels.

III. MOTION TO DISMISS

Defendants move to dismiss plaintiffs' claims under the citizen suit provision of the CAA and under the National Environmental Policy Act. I address their arguments below.

A. STANDARDS

On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, ...