Sierra Club v. Larson, s. 92-2227

• Decision Date: 03 March 1993
• Docket Number: Nos. 92-2227,92-2323 and 92-2282,s. 92-2227
• Citation: 2 F.3d 462
• Parties: 24 Envtl. L. Rep. 20,070 SIERRA CLUB, et al., Plaintiffs, Appellants, v. Thomas D. LARSON, et al., Defendants, Appellees. SIERRA CLUB, et al., Plaintiffs, Appellants, v. Thomas D. LARSON, et al., Defendants, Appellees. SIERRA CLUB, et al., Petitioners, v. Julie BELAGA, etc., Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 462

2 F.3d 462

24 Envtl. L. Rep. 20,070

SIERRA CLUB, et al., Plaintiffs, Appellants, v. Thomas D. LARSON, et al., Defendants, Appellees.

SIERRA CLUB, et al., Plaintiffs, Appellants, v. Thomas D. LARSON, et al., Defendants, Appellees.

SIERRA CLUB, et al., Petitioners, v. Julie BELAGA, etc., Respondent.

Nos. 92-2227, 92-2323 and 92-2282.

United States Court of Appeals First Circuit.

Heard March 3, 1993.

Decided Aug. 6, 1993.

Thomas B. Bracken with whom Bracken & Baram, Boston, MA, was on brief for plaintiffs, appellants.

George B. Henderson, II, Asst. U.S. Atty., Boston, MA, with whom Myles E. Flint, Acting Asst. Atty. Gen., Washington, DC, A. John Pappalardo, U.S. Atty., Boston, MA, Robert L. Klarquist, Atty., Dept. of Justice, Michael Kenyon, Atty., U.S. E.P.A., Judith Tracy, Atty., U.S. E.P.A., Washington, DC, and Irwin Schroeder, Atty., Federal Highway Admin., Albany, NY, were on joint brief of appellees and respondent, for federal appellees.

William L. Pardee, Asst. Atty. Gen., Com. of Mass., with whom Scott Harshbarger, Atty. Gen., Com. of Mass., Boston, MA, was on joint brief of appellees and respondent, for state appellees.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

BOUDIN, Circuit Judge.

In this case, the Sierra Club appeals from the judgment of the district court declining to enjoin construction of the central artery/third harbor tunnel project in Boston. It also petitions to review the action of the Environmental Protection Agency in approving an amendment to Massachusetts state regulations that bears upon the project. We affirm the district court and deny the petition for review.

I. THE FACTS AND PRIOR PROCEEDINGS

Massachusetts, through its Department of Public Works, has begun construction of a mammoth project that includes rebuilding a major segment of Interstate Route 93 that now runs on a viaduct through downtown Boston and is known as "the central artery." When the central artery/tunnel project is completed some years from now, the highway segment in question will be widened, sunk below ground level, and mostly covered. It will connect at the north with a new bridge across the Charles River and at the south with a newly built third harbor tunnel running from South Boston to Logan Airport in East Boston.

The depressed and covered portion of the new highway and the tunnel will be ventilated by ducts and fans in six buildings located on the highway route and near the tunnel portals. Vast amounts of air will be drawn into the covered highway and tunnel, and the mixture of air and motor vehicle emissions will be pumped up through the six buildings and exhausted through stacks ranging from 90 to 225 feet high. Studies indicate that the project will reduce traffic congestion, increase average speeds, and reduce area-wide carbon monoxide and hydrocarbon emissions.

The Sierra Club, a non-profit environmental group, believes that whatever the area-wide effects of the project, it will create new "hot spots" of pollution in certain of the neighborhoods near to the six ventilation buildings. In its view, pollution control equipment, in the nature of after-burners, should be installed in the ventilation buildings. The federal and state governments, which have filed a joint brief in this case, deny that any dangerous hot spots will be created, pointing to studies conducted as part of the project's environmental review. They also assert that after-burner technology is not feasible because of the low concentration of pollutants in the vented air.

In March 1991, the Sierra Club and certain of its members who live in the vicinity of the central artery brought suit in district court against a collection of state and federal officials associated with the project. The gravamen of the suit was the Sierra Club's claim that the ventilation buildings planned for the project comprised a "major stationary source" of air pollution as that term is used in the Clean Air Act, 42 U.S.C. Sec. 7401, et seq., and counterpart Massachusetts regulations, 310 C.M.R. Sec. 7.00 et seq. It is common ground that, if the ventilation buildings were so classified, then the project would require a permit or permits from Massachusetts that have not been secured. To frame this issue entails a brief description of the statute.

The Clean Air Act enacted a complex statutory regime, several times amended, to control and mitigate air pollution in the United States. Broadly speaking, Title I of the statute regulates stationary sources of pollution and Title II regulates mobile sources, most importantly motor vehicles. For specified pollutants, national air quality standards are promulgated by the EPA. 42 U.S.C. Sec. 7409. Whether new construction of polluting facilities is permitted in an area, and what kind of controls are required, depends on whether the area is below or above the standard for each pollutant. Part C, 42 U.S.C. Secs. 7470-7492, governs permits where the standard has been attained; Part D applies to so-called nonattainment areas. Id. Secs. 7501-7515.

In either event, the construction of a "major" new stationary source--normally, one emitting 100 or more tons of pollutant each year, see 42 U.S.C. Sec. 7602(j)--generally requires a permit. 42 U.S.C. Secs. 7475(a), 7502(c)(5). ¹ In the case of Boston, some of the pollutants that will flow through the proposed ventilation buildings currently exceed national standards so that new major sources are subject to the more stringent class of limitations; other pollutants are below the standards and less stringent limitations apply. By way of example, the Boston area exceeds the national standard for carbon monoxide, and to secure a permit the highway proponents would have to show that a major stationary source can achieve the "lowest achievable emission rate" for that pollutant. 42 U.S.C. Sec. 7503(a)(2).

The Clean Air Act allocates different responsibilities to the EPA on the one hand and to the states on the other. Each state is directed to adopt and submit to the EPA for approval a state implementation plan to achieve and maintain the national standards established by the EPA. 42 U.S.C. Sec. 7410(a). See also id. Secs. 7471, 7502. If the state fails to adopt an approvable plan, the EPA must adopt federal regulations for the area. 42 U.S.C. Sec. 7410(c). Massachusetts has an approved state implementation plan. Under the Clean Air Act, "citizen" suits may be brought to enjoin a project that requires a permit under Parts C or D but has not obtained one. 42 U.S.C. Sec. 7604(a)(3).

In this case, in April 1991 the Sierra Club and certain of its members sought a preliminary injunction against construction of the central artery and tunnel project. The request was denied on July 30, 1991. After transfer of the case to another judge, the district court received further briefing and argument. On September 16, 1992, the court granted summary judgment in favor of the government defendants, state and federal, holding that the ventilation buildings did not comprise stationary sources subject to pre-construction permit requirements. The Sierra Club and its named members appealed.

Shortly before the lawsuit, the Massachusetts Department of Environmental Protection submitted to the EPA on January 30, 1991, a new regulation--regulation 7.38, codified as 310 C.M.R. Sec. 7.38--as a proposed amendment to the Massachusetts state implementation plan. This regulation seeks to classify tunnel ventilation systems as "indirect sources" under the Clean Air Act. In the early 1970s, the EPA had begun to require that state implementation plans regulate such facilities as parking lots, highways and garages that do not emit pollutants themselves but attract numbers of polluting vehicles. Congress responded in 1977 by barring the EPA from regulation of what were called "indirect sources." 42 U.S.C. Sec. 7410(a)(5)(B). ² However, Congress at the same time gave the states permission, if they so chose, to regulate such indirect sources themselves as part of their state implementation plans. Id. Sec. 7410(a)(5)(A), (C).

Massachusetts, exercising this option through regulation 7.38, proposed to regulate roadway/tunnel ventilation systems as indirect sources. The regime involves certification by the builder that specified pollution standards will be met, and the Department of Environmental Protection may accept, conditionally approve, or reject the certification after notice and hearing. Monitoring after construction and periodical renewal of the certificate are required. The new regulation also states that the systems are not subject to the preconstruction permitting required for various stationary sources under regulation 7.02, 310 C.M.R. Sec. 7.02.

The Sierra Club opposed the approval of regulation 7.38 when Massachusetts submitted it to the EPA as an amendment to the state implementation plan. The Sierra Club argued that the effect would be indirectly to relieve the project at issue in this case of the more stringent pre-construction approval required of major stationary sources under the Clean Air Act and the Massachusetts regulations that apply to stationary sources. After notice and receipt of public comments, the EPA on October 8, 1992, published notice of its approval, 57 Fed.Reg. 46310 (1992). The Sierra Club then petitioned for review of the EPA's action in this court pursuant to 42 U.S.C. Sec. 7607(b)(1).

Because of the overlapping issues and common subject, this court consolidated the two appeals taken from the district court judgment with the proceeding for direct review of the EPA action. In this opinion, we address first a jurisdictional objection raised by the federal defendants, then statutory issues posed by the appeals from the district court, and finally the additional issues posed by the Massachusetts regulations and by the petition to review the EPA's action approving regulation 7.38.

II. JURISDICTION

The federal defendants renew...