Sierra Club v. Atlanta Regional Com'n, CIV.A. 101CV0428BBM.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Citation255 F.Supp.2d 1319
Docket NumberNo. CIV.A. 101CV0428BBM.,CIV.A. 101CV0428BBM.
PartiesSIERRA CLUB et al., Plaintiffs, v. ATLANTA REGIONAL COMMISSION et al., Defendants.
Decision Date18 January 2002

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255 F.Supp.2d 1319
SIERRA CLUB et al., Plaintiffs,
No. CIV.A. 101CV0428BBM.
United States District Court, N.D. Georgia, Atlanta Division.
January 18, 2002.

Page 1320


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Stephen Wesley Woolf, Southern Environmental Law Center, Atlanta, GA, Robert E. Yuhnke, phv, Office of Robert E. Yuhnke, Boulder, CO, J. David Farren, phv, Southern Environmental Law Center, Chapel Hill, NC, for Sierra Club, Southern Organizing Committee for Economic and Social Justice, Georgia Coalition for the People's Agenda, Environmental Defense, plaintiffs.

William R. Bassett, Harvey M. Koenig, Mikel Lemual Purcell, Smith Bassett Purcell

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& Koenig, Atlanta, GA, for Atlanta Regional Commission, Charles Krautler, Director, Atlanta Regional Commission.

Diane L. DeShazo, State of Georgia Law Department, Atlanta, GA, Daniel M. Formby, Rene Octavio Lerer, Thurbert E. Baker, Alan Gantzhorn, Office of State Attorney General, Atlanta, GA, Patricia T. Barmeyer, King & Spalding, Atlanta, GA, for Georgia Department of Transportation, Tom Coleman, Commissioner, Georgia Department of Transportation, Georgia State Transportation Board, Tom Triplett, W.P. Langdale, Sam M. Wellborn, Brad Hubbert, Emory C. McClinton, Johnny Gresham, Boyd Pettit, Harold Dixon, William G. Hasty, Sr., James L. Lester, Steve Reynolds.

Richard H. Deane, Jr., Julia B. Anderson, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, John C. Cruden, phv-DOJ, Norman L. Rave, Jr., phv-DOJ, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, James C. Thomason, III, nam, Federal Highway Administration, Assistant Regional Counsel, Atlanta, GA, U.S. Dept. of Transportation, Norman U.S. Department of Transportation, Secretary, Vince Federal Highway Administration (FHWA), Acting Administrator, Hiram Federal Transit Administration (FTA), Acting Administrator, Larry Division Administrator, Georgia Division, FHWA, Division Admin., Jerry Regional Administrator, FTA, Regional Admin., defendants.

Robert Clinton Chambers, George Daryl Wenick, Smith Currie & Hancock, Atlanta, GA, David M. Friedland, phv, Gus B. Bauman, phv, David M. Williamson, phv, Beveridge & Diamond, Washington, DC, for Advocates for Safe and Efficient Transp., Shepherd Const. Co., Inc., C.W. Mathhews Contracting Co., Inc., Mid State Const. & Striping, Inc., Tidwell Const. Co., Pittman Const. Co.


MARTIN, District Judge.

This action seeking injunctive and declaratory relief for violations of, inter alia, the Clean Air Act, is currently before the court on the plaintiffs' motion for partial summary judgment [Doc. No. 65-1], motion for partial summary judgment filed by defendant-intervenor Advocates for Safe and Efficient Transportation [Doc. No. 67-1], motion for partial summary judgment filed by defendants Norman Mineta, Vince Schimmoller, Jenna L. Dorn, Larry Dreihaup, and Jerry Franklin [Doc. No. 68-1], motion for partial summary judgment filed by defendants Atlanta Regional Commission and Charles Krautler [Doc. No. 69-1], and the motion for partial summary judgment filed by defendants Georgia Department of Transportation, Georgia State Transportation Board, Tom Coleman, Tom Triplett, W.P. Langdale, Sam M. Wellborn, Brad Hubbert, Emory C. McClinton, Johnny Gresham, Boyd Pettit, Harold Dixon, William G. Hasty, Sr., James L. Lester, and Steve Reynolds [Doc. No. 70-1].


The plaintiffs, four public interest organizations

1 with members who state they are affected by the air quality in the Atlanta

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metropolitan area, filed this action on February 13, 2001 against federal, state and regional transportation agencies and officers2 for declaratory and injunctive relief. The suit challenges the agencies' adoption, approval and funding of the 2025 Regional Transportation Plan ("2025 RTP"), the 2001-03 Transportation Improvement Plan ("2001-03 TIP"), and the associated conformity determinations under section 176(c) of the Clean Air Act ("CAA"), 42 U.S.C. § 7506(c) for Atlanta's ozone nonattainment area. For the reasons that follow, the court denies intervenor-defendant ASET's motion for partial summary judgment, grants the remaining defendants' motions for partial summary judgment and denies the plaintiffs' motion for partial summary judgment. Before recounting the relevant facts, the court first discusses the federal statutes and regulations at issue.

I. Statutory Framework

The CAA, 42 U.S.C. §§ 7401 et seq., is a comprehensive program for controlling and improving the nation's air quality.3 Under the CAA, the EPA identifies air pollutants that endanger the public health or welfare, determines what concentrations of those pollutants are safe, and promulgates those determinations as national ambient air quality standards ("NAAQS"). See 42 U.S.C. §§ 7408, 7409. Each state bears responsibility for ensuring that its ambient air meets the appropriate NAAQS. See 42 U.S.C. § 7407(a). Ozone is one of the pollutants identified and regulated by the EPA. See 40 C.F.R. § 50.9. Ozone is formed when nitrogen oxides ("NOx") react with volatile organic compounds in the presence of sunlight. One of the primary sources of NOx is motor vehicle emissions.

To meet the NAAQS for pollutants such as ozone, states must establish state implementation plans ("SIPs") that provide "for implementation, maintenance, and enforcement" of the EPA's air quality standards. 42 U.S.C. § 7410(a)(1). The CAA requires SIPs to include "enforceable emission limitations and other control measures, means, or techniques, ... as well as schedules and timetables for compliance" to meet the NAAQS. 42 U.S.C. § 7410(a)(2)(A). States submit their SIPs to the EPA for

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approval, and the states must revise their plans "as may be necessary to take account of [NAAQS] revisions," 42 U.S.C. § 7410(a)(2)(H)(i), or whenever the EPA determines that a SIP is "substantially inadequate to attain" the NAAQS. 42 U.S.C. § 7410(a)(2)(H)(ii).

Areas that do not meet the relevant air quality standards are known as "nonattainment areas." 42 U.S.C. § 7407(d)(1)(A)(i). As to attainment of the ozone NAAQS, the CAA establishes five levels of nonattainment classifications—marginal, moderate, serious, severe, and extreme—based upon how close the area comes to meeting the standard. See 42 U.S.C. § 7511(a)(1). The Act imposes progressively stringent requirements on areas falling within each nonattainment classification. Atlanta is classified as a serious ozone nonattainment area and was originally required to attain the ozone NAAQS no later than 1999. States with serious, severe, or extreme nonattainment areas must submit to the EPA for approval certain revisions to their SIPs, including "attainment demonstrations" which show how each nonattainment area will achieve the ozone NAAQS by the appropriate date. See 42 U.S.C. §§ 7511a(c)(2)(A), 7511a(d).

To satisfy the statutory requirements, the EPA requires attainment SIPs to contain an "inventory of current NAAQS pollutant emissions, as well as air quality modeling which demonstrates that[,] given certain assumptions about population growth, economic growth, and growth in vehicle miles traveled, the SIP's control measures will result by a certain date in a level of emissions which is in attainment with the NAAQS." Criteria for Determining Conformity, 58 Fed.Reg. 3768, 3769 (proposed Jan. 11, 1993). This level of emissions yielded after implementation of the SIP control strategies is referred to by the EPA as an "emissions budget." Id. States with serious, severe, or extreme ozone nonattainment areas must also submit SIP revisions that show the area is making "reasonable further progress" towards reaching attainment. See 42 U.S.C. § 7511a(c)(2)(B). "The [reasonable further progress] requirements in effect create an emissions budget for each milestone year, in addition to the budget that applies for the attainment year." 58 Fed.Reg. at 3769.

The EPA requires that the emissions budgets established in attainment demonstrations and demonstrations of reasonable further progress include a quantitative motor vehicle emissions budget ("MVEB"), which establishes the "portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision ... allocated to highway and transit vehicle use and emissions." 40 C.F.R. § 93.101. According to the EPA, "[a] SIP cannot effectively demonstrate attainment unless it identifies the level of motor vehicle emissions that can be produced while still demonstrating attainment." Approval and Promulgation of Air Quality Implementation Plans, 64 Fed. Reg. 70,397, 70,402 (proposed Dec. 16, 1999).

Given the relationship between motor vehicle emissions and ozone pollution, the CAA also includes certain "conformity" provisions that "integrate ... the [CAA] with the transportation planning process by conditioning federal approval and funding of transportation activities on their demonstrated compliance with applicable SIPs." Sierra Club v. EPA 129 F.3d 137, 138 (D.C.Cir.1997). Pursuant to the conformity provisions, no federal "department, agency, or instrumentality" may "engage in, support in any way or provide

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financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved." 42 U.S.C. § 7506(c)(1). An activity "conforms" to the applicable SIP only if the activity is consistent with the SIP's "purpose of eliminating or reducing the severity and number of violations of the [NAAQS] and achieving expeditious attainment of such standards," 42 U.S.C. § 7506(c)(1)(A), and if the activity will not:

(i) cause or contribute to any new violation of any standard in any area;

(ii) increase the frequency or severity of any existing violation of any standard in any area; or

(iii) delay timely attainment...

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1 cases
  • Sierra Club v. Georgia Power Co., No. CIV.A. 3:02CV151JTC.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • December 14, 2004
    ...not meet the primary or secondary NAAQS for certain pollutants. See 42 U.S.C. § 7407(d)(1)(A); Sierra Club v. Atlanta Reg'l Comm'n, 255 F.Supp.2d 1319, 1327 (N.D.Ga.2002) (Martin, J.). Atlanta is a non-attainment area for 2. Unlike Georgia, many states' SIPs impose a 20% opacity limit. See,......

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