Mountain States Legal Foundation v. Costle, 79-2261

• Decision Date: 29 August 1980
• Docket Number: No. 79-2261,79-2261
• Citation: 630 F.2d 754
• Parties: , 14 ERC 2033, 10 Envtl. L. Rep. 20,769 MOUNTAIN STATES LEGAL FOUNDATION et al., Petitioners, v. Douglas M. COSTLE et al., Respondents. State of Colorado ex rel. J. D. MacFarlane, Petitioner-Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 754

630 F.2d 754

14 ERC 2032, 14 ERC 2033, 10 Envtl.

L. Rep. 20,769

MOUNTAIN STATES LEGAL FOUNDATION et al., Petitioners, v. Douglas M. COSTLE et al., Respondents State of Colorado ex rel. J. D. MacFarlane, Petitioner-Intervenor.

No. 79-2261.

United States Court of Appeals, Tenth Circuit.

Argued March 13, 1980.

Decided Aug. 29, 1980.

James G. Watt and Gale A. Norton, Mountain States Legal Foundation, Denver, Colo. (James W. Sanderson of Saunders, Snyder, Ross & Dickson, Denver, Colo., with them on the brief), for petitioners.

Donald W. Stever, Jr., Atty. Gen., Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., and Angus Macbeth, Deputy Asst. Atty. Gen., Washington, D. C., Barbara H. Brandon, Kenneth A. Reich and Jose Allen, Attys., Dept. of Justice, Washington, D. C., with him on the brief), (Michele Biegel Corash, Gen. Counsel, and Bruce Diamond, James N. Cahan and Eric Smith, Attys., Environmental Protection Agency, Washington, D. C., Christine Lipaj Shaver, Atty., Environmental Protection Agency, Denver, Colo., of counsel), for respondents.

Janice L. Burnett, Asst. Atty. Gen., Natural Resources Section, the State of Colorado, Denver, Colo. (J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., and Lawrence A. DeClaire, Asst. Atty. Gen., Natural Resources Section, the State of Colorado, Denver, Colo., with her on the brief), for petitioner-intervenor.

Jackson B. Battle, Robert J. Golten and Robert F. Wiggington, Boulder, Colo., filed an amicus curiae brief for National Wildlife Federation.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Mountain States Legal Foundation, hereinafter referred to as Mountain States, ¹ twenty-seven (27) named members of the Senate and House of Representatives of the State of Colorado in their respective official capacities as individually elected legislators of the State of Colorado, and the State of Colorado ex rel. Mountain States, hereinafter jointly referred to as Mountain States, et al., or petitioners, filed a petition for review challenging the constitutional and statutory authorization of a final rulemaking decision of the federal Environmental Protection Agency (EPA) conditionally approving portions of the Colorado air quality control implementation plan. The petition, dated December 4, 1979, was filed pursuant to the Clean Air Act, 42 U.S.C. §§ 7401 et seq. and rule 15 of Fed.R.App.Proc., 28 U.S.C.A. The State of Colorado, ex rel. J. D. MacFarlane, Attorney General, intervened.

Background

Section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1), involves a complex web of exclusive jurisdiction governing review of various actions of the Administrator of EPA. Decisions handed down prior and subsequent to the 1977 amendments to the Act make it clear that exclusive jurisdiction for review of regulations or actions of the Administrator of EPA vests in the courts of appeals. Anaconda Company v. Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973); U. S. Steel Corp. v. U. S. Environmental Protection Agency, 595 F.2d 207 (5th Cir. 1979); Lubrizol Corp. v. Train, 547 F.2d 310 (6th Cir. 1976).

The Clean Air Act creates a complicated statutory framework. The responsibility for plans to clean up the air is divided between the federal and state governments. The Act requires the EPA Administrator to establish ambient air quality standards for various pollutants. 42 U.S.C. § 7409. Each state governor is then required to submit a state implementation plan (SIP) designed to accomplish these standards. 42 U.S.C. § 7410. The EPA Administrator thereafter either approves or disapproves the SIP. 42 U.S.C. § 7410(a)(2)(A) through (K). Thus, the Congress clearly intended the final decision to be that of the EPA. See 42 U.S.C. §§ 1857(a)(2)(b), 1857c-5, 1857c-6; 42 U.S.C. §§ 7410(a)(2)(I), 7413(a)(5), 7502(a)(1). See also : 42 U.S.C. §§ 7411(d)(1), (2) (A) and (B), 7412(d)(1) and (2).

If a state fails to promulgate an acceptable plan, the Act requires that the EPA Administrator formulate and promulgate a federal plan for the governing area. 42 U.S.C. § 7410(c). The 1972 Colorado SIP submitted by the Governor met the approval of the EPA Administrator. 40 C.F.R. § 52.320, et seq. However, the 1972 Colorado SIP was required to be revised by virtue of 1977 amendments to the Act dealing with "nonattainment areas", i. e., air quality control regions that fail to meet air quality standards. 42 U.S.C. §§ 7501-7508. States with "nonattainment areas", such as Colorado, were required to submit revised SIPs by January 1, 1979; further, if a state appeared to be unable to meet air quality control standards by December 31, 1982, an additional requirement is imposed by the Act: The implementation of an automobile emission inspection and maintenance (I/M) program. 42 U.S.C. § 7502(b)(11)(B). In the event of a state's failure to comply, the EPA contends it is empowered to ban new construction in nonattainment areas pursuant to 42 U.S.C. § 7410(a)(2)(I), and to withhold federal grants pursuant to 42 U.S.C. §§ 7506(a) and 7616(b).

The EPA's Final Rulemaking on Approval of the Colorado SIP, 44 Fed.Reg. 57401 (October 5, 1979), effectively amended 40 C.F.R. part 52, so as to approve in part the revised Colorado SIP mandated by the nonattainment provisions of the Clean Air Act. The revised SIP was submitted to EPA by the State on January 2, 1979. EPA published a notice of proposed rulemaking on May 11, 1979. See 44 Fed.Reg. 27691. The final rulemaking notice included four different types of dispositions as to various portions of the SIP: Approval, conditional approval, disapproval, and no final action. The instant case particularly relates to the attainment of the ambient air quality standards for ozone and carbon monoxide in "nonattainment areas" where EPA required I/M programs. These areas included portions of Larimer, Weld, Adams, Arapahoe and El Paso Counties, and the Counties of Denver, Boulder, Douglas and Jefferson.

The EPA contended that Colorado Senate Bill 1, establishing an I/M program to begin on January 1, 1981, and commissioning a study of the effectiveness of various I/M-type programs, was not "adequate enabling authority". Accordingly, the legislation did not receive complete EPA approval. The Administrator found that the legislation was deficient in several respects: (1) the legislature retained the right to approve I/M standards before they were to go into effect; (2) the bill contained no provision for retest after maintenance; (3) its appropriateness for 1981 and later model vehicles was questioned; (4) it lacked schedules for implementation of various administrative elements of the program; (5) the bill needed provisions for recordkeeping; (6) there were no demonstrated commitments to reduce emissions by at least 25% or to implement and enforce the program; and (7) the bill did not provide for unannounced inspection of facilities. 44 Fed.Reg. 57404-05. As a result of these alleged deficiencies, EPA ruled: "It is clear, however, that the program passed by the legislature does not meet the requirements of the Clean Air Act and additional action by the legislature is essential." 44 Fed.Reg. 57405. The EPA Final Rulemaking of October 5, 1979, set forth a timetable for the Colorado state legislature and Governor to follow as a basis for achieving full approval:

January 1, 1980-Senate Bill 1 study to be completed and submitted to legislature.

January 12, 1980-I/M program to be included on list of Governor's Call Items for the 1980 legislative session.

February 1, 1980-Study results in the form of a draft final report to be submitted to legislature.

February 1, 1980-Bill introduced in the legislature-copy submitted to EPA.

March 1, 1980-Submission to EPA of legislation signed into law by the Governor, as well as schedules (milestones, dates, responsible agency) to implement the I/M program and corrections to other noted deficiencies.

44 Fed.Reg. 57405 (1979).

We here observe that the March 1, 1980, "deadline" above referred to was in fact the creation of the Colorado General Assembly, by virtue of its passage of Senate Bill 1 in June of 1979 which provided, inter alia : "The general assembly shall . . . take legislative action thereon, if any, not later than March 1, 1980 . . ." C.R.S.1973, 42-4-306.5(5). The deadline was self-imposed by the Colorado legislature.

The Administrator's mandate was followed by a listing of the consequences of noncompliance, including imposition of the sanctions contained in §§ 176(a) and 316(b) of the Act, 42 U.S.C. §§ 7506(a) and 7616(b), and a prohibition on construction of certain new major facilities in nonattainment areas, 42 U.S.C. § 7410(a)(2)(I). 44 Fed.Reg. 38471 (July 2, 1979). The Administrator emphasized the effect of noncompliance: "Due to potentially severe impacts resulting from the imposition of sanctions, it is vital that the effects be well understood." 44 Fed.Reg. § 57408. Among the Administrator's "examples" of affected projects were planning and research grants, sewage treatment grants totaling $132 million (itemized by project), and an unspecified amount of federal highway funds. The EPA further warned that if it appeared that the state would not meet EPA's schedule, the imposition of sanctions would be accelerated. 44 Fed.Reg. § 57408. These "admonishments" were made by EPA Regional Administrator Roger L. Williams following his meeting on February 28, 1980, with leadership of the Colorado General Assembly during which time the leadership expressed no hope that its own March 1, 1980, deadline would be met and that there was little prospect for the passage of an acceptable I/M program before the end of the legislative session.

On March 1, 1980, EPA notified this Court of its intention to disapprove the carbon monoxide and ozone portions of the Colorado SIP and that it would impose the Section 110(a)(2)(I) moratorium on...