Kentucky Resources Council, Inc. v. U.S.E.P.A.
| Decision Date | 29 January 2004 |
| Docket Number | Civil Action No. 3:03CV-712-H. |
| Citation | 304 F.Supp.2d 920 |
| Parties | KENTUCKY RESOURCES COUNCIL, INC. and Sara Lynn Cunningham, Plaintiffs v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Natural Resources and Environmental Protection Cabinet, Louisville Metro Air Pollution Control District and Louisville Metro Air Pollution Control Board, Defendants. |
| Court | U.S. District Court — Western District of Kentucky |
Thomas Joseph FitzGerald, Kentucky Resources Counsel, Frankfort, KY, for Plaintiffs.
Michael C. Haines, John G. Horne, II, Kentucky Natural Resources & Environmental Cabinet, Frankfort, KY, for Defendants.
Lauren Anderson, Scott N. Lilly, William Patrick O'Brien, Jefferson County Attorney, Louisville, KY, for Cross Claimants.
Just a few months short of twenty years after it began the vehicle emission testing program (the "VET"), the Louisville Metro Air Pollution Control District (the "District") decided to terminate that program, upon the command of KRS 77.320. Plaintiffs, a group of Louisville residents, challenge that decision on the grounds that the District lacks the authority under the Clean Air Act, 42 U.S.C. § 7401 et seq. (the "Act"), to take such action without approval of the United States Environmental Protection Agency (the "EPA").
The Act envisions a cooperative process by which the Kentucky Natural Resources and Environmental Protection Cabinet (the "Cabinet"), the District, and the EPA, not the courts, are supposed to make important decisions about our local air quality control. That a court must intervene is a sign that the process has failed. Nevertheless, this case does not require the Court to determine whether the VET program is either a necessary or beneficial means of improving our community air quality. Rather, the Court must determine who has the authority to decide that question and what law they must follow in doing so.
For the reasons set forth carefully in this Memorandum Opinion, the Court concludes that the Kentucky state legislature is without authority to interpose its particular air quality control enforcement preferences under these circumstances or in this manner. As a consequence, and in the absence of clarifying or cooperative direction from the EPA, Plaintiffs are entitled to equitable relief requiring the Cabinet and the District to comply with the Act, which would include restarting the VET program.
The purpose of the federal Clean Air Act is to create a cooperative partnership between the states and the federal government to enforce air quality standards on a nationwide and local basis. The EPA develops national ambient air quality standards. The individual states devise implementation plans to attain compliance with those standards and objectives. The state implementation plan is referred to as a SIP. The Cabinet has responsibility for proposing and implementing the Kentucky SIP. It contains specific measures to meet the required clean air standards for this state. 42 U.S.C. § 7502(c)(6). The EPA must approve every SIP. Id. § 7410(k). Upon approval, a state or local SIP is printed in the Federal Register and becomes enforceable as federal law. See Gen. Motors Corp. v. United States, 496 U.S. 530, 540, 110 S.Ct. 2528, 110 L.Ed.2d 480 (1990). A state may seek approval from the EPA to revise its SIP. § 7410(a)(2).
As authorized by the Act, the Cabinet has delegated to the District the power to propose that portion of the SIP applicable to Jefferson County. In 1982, the Cabinet proposed revisions to the Kentucky SIP for Jefferson County to comply with the Act. The revisions included establishing the VET program. After a lengthy period of consultation, the EPA approved the plan. 49 Fed.Reg. 39,547 (Oct. 9, 1984) ().1 In 1990, the EPA approved the Cabinet's request that Jefferson County be redesignated as in attainment for carbon monoxide based upon ambient monitoring data and its EPA-approved control strategies, which included the VET program. 55 Fed.Reg. 14,092 (Apr. 16, 1990) (). On October 23, 2001, the EPA designated the District as in attainment of all current ambient air quality standards and approved the District's maintenance plan that included continuation of the VET program. 66 Fed.Reg. 53,665 (Oct. 23, 2001) ().
In each of these instances, the District's proposals and the EPA's approvals addressed the existing air quality standards, which included the so-called one-hour standard for ozone codified in 1979. In 1997, the EPA proposed two new ambient air quality standards: one for fine particulate matter and an eight-hour standard for ozone. After several years of litigation, the Supreme Court upheld the new standards. See Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). The EPA contends that they now apply nationwide and is in the process of developing transition rules to govern these more stringent standards.
The VET program has always generated more than its share of controversy. By necessity, it imposes a certain amount of inconvenience and expense upon citizens whose vehicles regularly meet its standards. Not surprisingly, many people find the testing requirement intrusive and wasteful.2 On the other hand, many believe that the VET is absolutely essential to controlling our region's nagging and well-documented air pollution problems. The current dispute arises from the determination of the VET's opponents to force its termination. Consequently, the Court will carefully describe the largely undisputed course of events that has led to federal court.
Immediately after the EPA declared the District in compliance with all ambient air quality standards in 2001, the Kentucky General Assembly, during its 2002 session and at the apparent urging of VET opponents, devised a means by which it hoped to force an end to the program. House Bill 618, subsequently codified as KRS 77.320, purported to compel the new Louisville Metro Government to eliminate the VET program by November 1, 2003.3 The District's Board strenuously opposed this legislation. After the Kentucky House and Senate approved it, the District's director, Arthur L. Williams, acting on behalf of the District's Board, submitted a lengthy analysis urging the Governor to veto the legislation. The letter cited numerous and rather persuasive environmental, economic, practical, and legal concerns in opposition to the proposed legislation. Despite this plea, the Governor signed House Bill 681, and it became law.
Only six months later when the new Louisville Metro Government came into being in January 2003, the District was apparently determined to comply with both that new state statute and the Act. On July 7, 2003, therefore, the District proposed various revisions to the Kentucky SIP to eliminate the VET program. The primary motivation and purpose of these revisions were to comply with the new state statute. On August 14, 2003, the EPA preliminarily advised the District that any SIP revision must consider the new eight-hour ozone and fine particulate matter standards. Because the proposed revision did not consider those standards, the District knew then that the EPA was not likely to approve the SIP revision simply as a matter of course.
Nevertheless, on August 27, 2003, the District submitted a formal request to the EPA for approval to revise the SIP by eliminating the VET. About the same time, it took preliminary steps to terminate various employees and contracts preparatory to ending the VET program effective November 1, 2003. On September 10, 2003, in response to all these events, the Kentucky Resources Council gave notice that it intended to file suit demanding compliance with the existing SIP.4 So far as the Court can determine, Defendants did not reply.
On October 27, 2003, the EPA notified the District that its only option was to disapprove the SIP revision. The EPA offered two basic reasons for its decision: (1) the District could not eliminate the VET without offering compensating control measures to assure continued attainment of one-hour ozone existing standards; and (2) the submission contained no plan for attaining new EPA fine particulate and eight-hour ozone standards. The correspondence stated in no uncertain terms that the District's request to revise the SIP could not be approved. In fact, it concluded by saying that "it is our intent in the next few weeks to prepare an action in the Federal Register disapproving the September 23, 2003, SIP submitted revision." Notwithstanding that statement, the EPA has yet to file such a formal denial.
The EPA actually communicated its denial to the Cabinet with a copy to the District. The Cabinet forwarded that correspondence to the District with a cover letter noting that
This means that the SIP, as codified at 40 CFR 52.920 to 52.939, continues to have full force and effect pursuant to the federal Clean Air Act, 42 U.S.C. § 7401, et seq. Louisville/Jefferson County Metro, through the Louisville/Jefferson County Metro Air Pollution Control District, must as a matter of federal law continue implementing its 1-Hour Maintenance Plan, which includes operation of the vehicle emissions testing program.... [W]e wanted to make you aware of the denial, and of the continuing obligation imposed by federal law.
Notwithstanding the EPA's denial of the revision request and the Cabinet's warning about the requirements of federal law, the District determined to proceed with its existing plans to end the VET program. On November 1, 2003, the District ceased to implement and enforce the VET program. On the same day, Plaintiffs filed for relief under the Kentucky Declaratory Judgment Act. Jefferson Circuit Court Judge Thomas B. Wine concluded, however, that he lacked jurisdiction to decide the questions concerning federal law. On ...
To continue reading
Request your trial
-
Sierra Club v. Moser
...456, 471 (D.C.Cir.1983) (current SIPs remain in force until EPA formally approves revision); Kentucky Resources Council, Inc. v. United States E.P.A., 304 F.Supp.2d 920, 927–28 (W.D.Ky.2004) (approved SIP remains applicable even after state has submitted a proposed revision to EPA). In Kans......
-
Consol. Envtl. Mgmt., Inc. v. Zen-Noh Grain Corp., Civil Action Nos. 12–1011
...federally enforceable. Louisiana Envtl. Action Network v. EPA, 382 F.3d 575, 579 (5th Cir.2004); Kentucky Res. Council, Inc. v. EPA, 304 F.Supp.2d 920, 923 (W.D.Ky.2004); Sweat v. Hull, 200 F.Supp.2d 1162, 1164 (D.Ariz.2001). For entities regulated under the Act, “[t]he burden is clearly on......
-
St. Bernard Citizens for Env. Quality v. Chalmette
...becomes federally enforceable. Louisiana Envtl. Action Network v. EPA, 382 F.3d 575, 579 (5th Cir.2004); Kentucky Res. Council, Inc. v. EPA, 304 F.Supp.2d 920, 923 (W.D.Ky.2004); Sweat v. Hull, 200 F.Supp.2d 1162, 1164 (D.Ariz.2001). For entities regulated under the Clean Air Act, "[t]he bu......
-
Zen-Noh Grain Corp. v. Consol. Envtl. Mgmt. Inc.
...federally enforceable law. Louisiana Envtl. Action Network v. EPA, 382 F.3d 575, 579 (5th Cir. 2004); Kentucky Res. Council, Inc. v. EPA, 304 F. Supp. 2d 920, 923 (W.D. Ky. 2004); Sweat v. Hull, 200 F. Supp. 2d 1162, 1164 (D. Ariz. 2001). Although the states "have 'wide discretion' in formu......