McCarthy v. Thomas, 92-16219

• Decision Date: 13 June 1994
• Docket Number: No. 92-16219,92-16219
• Citation: 27 F.3d 1363
• Parties: 24 Envtl. L. Rep. 21,119 Brian McCARTHY; Gayle Hartmann; Alma Williams; Roberta Delaney, Plaintiffs-Appellants, v. Lee M. THOMAS, et al.; City of Tucson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1363

27 F.3d 1363

24 Envtl. L. Rep. 21,119

Brian McCARTHY; Gayle Hartmann; Alma Williams; Roberta

Delaney, Plaintiffs-Appellants, v. Lee M. THOMAS, et al.; City of Tucson, Defendants-Appellees.

No. 92-16219.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 14, 1993.

Decided June 13, 1994.

David S. Baron, Arizona Center for Law in the Public Interest, William W. Pearson, Molloy, Jones & Donahue, Tucson, AZ, for appellants.

M. James Callahan, Asst. City Atty., Phoenix, AZ, for appellee City of Phoenix.

Tobin Rosen, Principal Asst. City Atty., Tucson, AZ, for appellee City of Tucson.

Jacques B. Gelin, David W. Zugschwerdt, U.S. Dept. of Justice, Environment & Nat. Res. Div., Appellate Section, Washington, DC, filed amicus curiae brief for Dept. of Justice, Land and Environment Div.

Appeal from the United States District Court for the District of Arizona, William D. Browning, District Judge, Presiding.

Before WALLACE, GARTH ^*, and WIGGINS, Circuit Judges.

Opinion by Judge WIGGINS.

WIGGINS, Circuit Judge:

Plaintiffs below ("Appellants") sought from the district court an order requiring the cities of Tucson and Phoenix to enlarge their mass transit systems. Specifically, Appellants asserted that Tucson and Phoenix must comply with certain mass transit proposals that Arizona submitted to the EPA in the late 1970s and early 1980s. The district court disagreed with Appellants and entered summary judgment for the cities. We reverse.

I.

A. Statutory Framework

As amended in 1970, the Clean Air Act ("CAA") required the EPA to establish national ambient air quality standards ("NAAQS") for certain airborne pollutants. 42 U.S.C. Sec. 7409. ¹ Most relevant to this case, the CAA required the EPA to promulgate standards for carbon monoxide ("CO"). These standards were to be enforced by the states, under the direction of the EPA. Specifically, each state was to submit to the EPA plans designed to implement, maintain, and enforce the NAAQS within the state. Id. Sec. 7410(a)(1). The EPA was to review the proposed plans and "approve or disapprove" them. Id. Sec. 7410(a) (1988); see id. Sec. 7410(k) (1994). EPA approval was to be given to submitted plans that complied with the CAA. Approved plans became or were added to the state's "state implementation plan" ("SIP"). See id. Sec. 7410(d) (1988).

Originally, the statute required each state to attain certain NAAQS within three years from the date the EPA approved the state's SIP. Id. Sec. 7410(a)(2)(A) (1988). By 1977, many states had failed to attain within the required time period NAAQS in certain geographical regions, however. Rather than allow those states to be sanctioned and forced to comply, Congress in 1977 allowed time extensions for such "nonattainment" areas. See id. Sec. 7501 et seq. (1988). (The part of the CAA added in 1977 to deal with nonattainment areas is generally known as Part D.) Under the new time periods, nonattaining states were to amend their SIPs, to attain NAAQS "as expeditiously as practicable" but "not later than December 31, 1982." Id. Sec. 7502(a)(1) (1988).

In the case of NAAQS for CO, if the states demonstrated that attainment was not possible by December 31, 1982, "despite the implementation of all reasonably available measures," the state was required to submit a second revised proposal to the EPA by July 1, 1982. Id. Sec. 7502(c) (1988). This proposal was to provide for attainment of CO NAAQS "as expeditiously as practicable but not later than December 31, 1987." Id. Sec. 7502(a)(2) (1988).

The CAA also required the EPA to prepare a federal implementation plan ("FIP") promptly after the rejection, in whole or part, of the state's revised SIP proposal. Id. Sec. 7410(c)(1). A FIP is a set of enforceable federal regulations that stand in the place of deficient portions of a SIP. The state can prevent the EPA from promulgating a FIP by acting prior to promulgation of the FIP to correct the deficiencies in, and obtain EPA approval of, the part of the SIP that the EPA has found deficient. Id.; id. Sec. 7410(k) (1994).

States are required to comply with FIPs and SIPs. Id. Sec. 7410(d) (1988); id. Sec. 7413. A FIP or SIP, designed to remedy a nonattainment problem, is enforceable in federal court against a state by (1) the EPA or (2) a citizen to the extent permitted by the Eleventh Amendment. Id. Secs. 7413, 7604(a) & (f).

B. Facts

In 1978, the EPA designated certain parts of Pima County (which includes Tucson) and Maricopa County (which includes Phoenix) as nonattainment areas for CO. In early 1979, Arizona submitted to the EPA proposed Pima and Maricopa County SIP revisions for CO. These submissions proposed that Tucson and Phoenix would enlarge their mass transit systems.

On July 23, 1980, the EPA proposed to approve the CO control strategies in the 1979 Pima County CO SIP revision, but only on condition that the state submit, inter alia, a schedule for implementation of specific improvements to mass transit. On March 8, 1982, Arizona submitted a document giving a schedule for implementation of mass transit improvements in Pima County ("Pima Improvement Schedule"). On July 7, 1982, the EPA formally approved the Pima Improvement Schedule as a SIP revision, and conditionally approved the Pima County CO SIP overall. 47 Fed.Reg. 29532, 29533-34 (July 7, 1982). The overall approval was conditioned on the correction of deficiencies unrelated to mass transit. The 1979 Pima County CO SIP revision and the Pima Improvement Schedule included plans to expand the Tucson bus fleet by 59 buses (to a total of 199 buses) with ridership of 14.5 million per year by 1986.

The 1979 Maricopa County CO SIP revision proposed to provide by 1982 a 400-bus fleet with average daily ridership of 112,000. On May 5, 1982, the EPA conditionally approved the Maricopa County SIP overall, including the 1979 Maricopa County CO SIP revision. 47 Fed.Reg. 19326, 19327-28 (May 5, 1982). The overall approval was conditioned on the correction of deficiencies unrelated to mass transit. (The May 5 and July 7, 1982, conditional approvals of the Maricopa and Pima plans are called collectively the "1982 Conditional Approvals." The Maricopa County CO SIP revision's, the Pima County CO SIP revision's, and the Pima Improvement Schedule's requirements relating to bus fleets and ridership are collectively called the "Mass Transit Provisions.")

Arizona failed to correct deficiencies in the Pima and Maricopa CO SIPs for several years, however. On February 24, 1984, the EPA informed Arizona that the Pima and Maricopa County SIPs were not adequate to attain the CO NAAQS by December 31, 1982. The EPA warned that failure to submit and obtain approval of a "1987 Extension SIP" would result in a construction ban. Arizona v. Thomas, 829 F.2d 834, 837-38 n. 5 (9th Cir.1987). On September 23, 1986, the EPA formally disapproved the attainment demonstrations (announcements that the plans contain all necessary implementation measures to ensure timely attainment of NAAQS) in the Pima and Maricopa County CO plans, finding that the SIPs did not contain sufficient measures to assure timely attainment. 51 Fed.Reg. 33746, 33746-49 (Sept. 23, 1986). The September 23, 1986, notice approved other measures related to mass transit, however, and left intact in the SIP measures approved prior to 1986. Id. at 33,746-48. Arizona challenged the EPA's disapproval of the attainment demonstrations, but the Ninth Circuit affirmed the EPA's disapproval. Arizona v. Thomas, 829 F.2d at 838-40.

In 1987 and 1988, the state submitted additional CO control strategy proposals for Pima and Maricopa counties. With these provisions added to the Arizona SIP, the EPA concluded that the Pima and Maricopa County CO plans demonstrated timely attainment of the CO NAAQS. The EPA therefore approved the additional provisions and attainment demonstrations in the Pima and Maricopa County CO SIPs. 53 Fed.Reg. 30220 (Aug. 10, 1988); 53 Fed.Reg. 30224 (Aug. 10, 1988). This 1988 approval did not mention previously approved portions of the Arizona SIP. However, it gave no indication that it was changing, vacating, or deleting any of those previously approved portions. In the 1988 announcement, the EPA purported to add only a few sections to the numerous provisions already included in the C.F.R. that by their terms apply to Pima and Maricopa Counties. See 40 C.F.R. Sec. 52.120 (1993).

Notwithstanding Arizona and the EPA seemed satisfied with the Pima and Maricopa County CO SIPs, the matter was not ended. When the 1988 approval was reviewed in the Ninth Circuit, this court found that the SIPs were not designed to attain NAAQS quickly enough to satisfy the CAA. In March 1990, the Ninth Circuit vacated the August 10, 1988 "final approval" of the Pima and Maricopa County CO SIPs and directed the EPA to promulgate a FIP for Pima and Maricopa counties. Delaney v. EPA, 898 F.2d 687, 695 (9th Cir.), cert. denied sub nom., Reilly v. Delaney, 498 U.S. 998, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990).

On January 29, 1991, the EPA responded to the Delaney order. It announced that in conjunction with promulgating a Pima and Maricopa County FIP, the EPA would leave intact or re-approve all measures that were in place in the Arizona SIP prior to Delaney with respect to Pima and Maricopa counties:

Pursuant to the Ninth Circuit's instructions in Delaney v. EPA, EPA is proposing, in a separate notice to promulgate a FIP for the Maricopa and Pima County CO nonattainment areas.

While the Delaney court vacated EPA's approval of the Arizona plans, EPA does not intend, nor does it consider that the court intended it, to vacate the control measures in the Maricopa and Pima plans which were previously approved by EPA (53 FR 30224, 30220). The court set aside EPA's approval of the plans for failure to include additional measures, beyond those included as part of the control strategy, rather than because the measures submitted by the...