Transportation planning and the Clean Air Act.

I. Introduction

Of all life's necessities, air is the one that people partake of most directly. Water can be filtered and food can be cleaned or grown organically, but we breath everything that we emit into the atmosphere.(1) Of all the sources of air pollution, western society is arguably most strongly attached to the motor vehicle. Unfortunately, mobile source emissions such as motor vehicles account for most of the ozone and carbon monoxide pollution in urban areas.(2) Therefore, reducing the negative impact of vehicle use upon air quality is of paramount importance.

Cleaning up individual vehicle emissions or decreasing overall vehicle impact through means such as reducing the number of vehicles in use can reduce the impact of mobile source emissions. The Clean Air Act (CAA)(3) embodies both of these options. Title I(4) of the Act contains provisions for planning by state and local governments to reduce vehicle impact while maintaining mobility, and Title II(5) addresses vehicle emissions reductions. This Chapter focuses on the transportation planning aspects of Title I; specifically, it examines the CAA's impact on transportation planning issues and how courts have addressed challenges to state and agency transportation planning actions.

Transportation planning must balance the need for effective movement of people and goods with society's desire to maintain and even improve present air quality. The CAA attempts to achieve this balance by providing goals and procedures for achieving air quality improvements. However, the CAA's procedural and substantive complexity as well as the uncertain efficacy of challenges to state and agency actions have generated much uncertainty and confusion. While the CAA promises protection and enhancement of air quality, case law reflects a history of noncompliance and litigation. Two recent Ninth Circuit cases, McCarthy v. Thomas(6) and Trustees for Alaska v. Fink,(7) exemplify some of the difficulties encountered with enforcement of CAA requirements for transportation.

McCarthy was a sequel to Delaney v. EPA,(8) in which the Ninth Circuit found the Environmental Protection Agency's (EPA) approval of the Tucson and Phoenix transportation control plans to be arbitrary and capricious(9) and ordered EPA to begin promulgation of a Federal Implementation Plan (FIP).(10) In McCarthy, the plaintiffs argued that Arizona was not enacting the State Implementation Plan (SIP)(11) revisions that the state had proposed in response to the threatened FIP,(12) and the Ninth Circuit agreed. The court held that the cities involved were required to implement the mass transit improvements promised by the Arizona SIP,(13) and ordered the district court to fashion an appropriate remedy.(14) McCarthy and Delaney suggested that the Ninth Circuit would require states to fully comply with the CAA's substantive goals. Such a requirement would comport with Congress's intent that the CAA's substantive goals be paramount.(15)

On the other hand, in Trustees for Alaska, the Ninth Circuit allowed the City of Anchorage to condition its promise to implement mass transit improvements upon funding availability.(16) In addition, because the plaintiffs had failed to prove that the city's attempts to locate funding were unreasonable, the court refused to find that Anchorage was in violation of its CAA implementation plan.(17) In essence, the Ninth Circuit's decision in Trustees for Alaska permitted Anchorage to use lack of funding as an excuse for not implementing the mass transit expansion that was part of Alaska's SIP under the CAA. The Trustees for Alaska decision represents a potential departure from enforcement of CAA substantive goals in that it implies that the CAA's mandate for enforceability can be conditioned upon good faith efforts to secure funds. To date, no other circuit interprets the CAA to permit a state or city to condition its SEP commitments upon funding availability.

This Chapter discusses transportation issues under the CAA and focuses upon those sections of the Act that are most relevant to the Trustees for Alaska decision. Part II analyzes the relevant portions of the CAA, focusing on changes included in the 1990 amendments. Part III examines the language of the CAA and analyzes the interpretation of that language by various courts. Part IV concludes that EPA should issue regulations to prevent states from conditioning CAA compliance on funding availability.

II. Transportation Planning Under the CAA

The central mechanism for implementing the CAA's substantive transportation planning goals is the State Implementation Plan (SIP) program.(18) Approval of a SIP by EPA is a lengthy process that has changed and expanded with the various CAA amendments. Understanding how the SIP program works is a prerequisite to examining the role and efficacy of the courts in enforcing the CAA's substantive goals.

A. History of the CAA

The CAA is one of the United States' most complex pieces of environmental legislation.(19) It has spawned innumerable lawsuits, and Congress has repeatedly amended it in attempts to address the difficulties encountered in implementing its mandates.(20) The CAA's stated purpose is to control air pollution.21 Congress first enacted the CAA in 1955(22) and amended it in 1963,(23) 1967,(24) and 1970.(25) The 1970 amendments, which established the basic structure of the modern CAA, set out a new and unique relationship between the federal government and the States.(26) This relationship gave EPA authority to establish nationwide air quality standards and to enforce those standards if states failed to do so.(27) However, Congress expressly gave states the primary role in designing and effectuating SIPs to achieve the national standards.(28) The 1970 amendments also required states to meet specific attainment deadlines in achieving the air quality Standards.(29)

When states failed to meet the 1970 amendment deadlines, Congress amended the CAA again in 1977.(30) These amendments included new attainment deadline requirements in a new Part D of Title I.(31) Part D required states to promulgate detailed SIPs that would provide for full attainment of the national ambient air quality standards (NAAQS) by certain dates.(32) However, not all states complied with the new deadlines,(33) and Congress began debating further amendments.(34) Congress passed new amendments in 1990 in an attempt to resolve the compliance difficulties while still providing for enforcement of the CAA's air pollution reduction goal.35 The 1990 amendments include revisions of the SIP program and new requirements for those areas failing to meet the schedulies of the 1977 amendments.(36) The 1990 amendments also include sanctions against states failing to meet attainment deadlines.(37)

B. CAA Provisions

Three parts of the CAA contain the majority(38) of its transportation planning requirements: NAAQS,(39) the SIP program,(40) and the requirements for nonattainment areas.(41)

1. National Ambient Air Quality Standards

The CAA requires EPA to promulgate NAAQS for protection of public health(42) and public welfare,(43) also termed primary and secondary standards, respectively. NAAQS are levels of air pollutants that EPA establishes having adverse effects on public health or welfare.(44) The agency promulgates the standards using notice-and-comment rulemaking(45) and is able to revise them as necessary using the same procedures.(46) If a pollutant satisfies the CAA's criteria, EPA cannot decline to promulgate a standard for that pollutant.(47) EPA cannot consider economic cost(48) or technological feasibility(49) when promulgating NAAQS. Once EPA establishes a standard for a particular pollutant, a state's SEP must comply with it.50 Currently, NAAQS exist for carbon monoxide, ozone, nitrogen dioxide, particulate matter, sulfur oxides, and lead.(51) The Code of Federal Regulations lists the primary and secondary NAAQS.(52)

2. State Implementation Plans

SIPs are the central focus of the CAA. SIPs involve a very complex process that has led to many problems.(53) The CAA requires each state to promulgate a SIP that provides for the 'implementation, maintenance, and enforcement" of the NAAQS.(54) Each SIP must be submitted for EPA approval; if a SIP meets the CAA's procedural and substantive requirements, EPA must approve it.(55) The CAA's 1990 amendments stipulate that EPA cannot approve a SIP until EPA completes a detailed completeness review.(56) The completeness review process and other substantive and procedural regulations promulgated by EPA allow the agency extensive control over the design and approval of SIPs. While EPA's regulations and interpretations often receive judicial deference,(57) there are limits to EPA's control over SIP proposals. For example, EPA cannot attach additional requirements to a SIP proposal or partially approve a SIP if doing so would impair the CAA's substantive goals.(58) If a state fails to submit a SIP or if EPA or a court finds the SIP proposal inadequate, then EPA must promulgate a Federal Implementation Plan (FIP) for that state.(59) However, EPA has resisted promulgating FIPs, preferring instead to grant partial approvals, conditional approvals, and even extensions.(60)

EPA's power to grant conditional approval of SIP proposals is important, because it provides the agency flexibility in approving SIPs.(61) For example, a state may find it difficult to meet the CAA's strict deadlines because the SIP approval process is so complex. Thus, EPA may use a conditional approval to continue working with that state and avoid having to reject the state's SIP proposal.(62) EPA also has the power to grant conditional approval of SIPS that are substantially conforming but lack certain minor details required for complete approval.(63) EPA has granted such conditional approvals when a SIP lacked such details as submission of a more refined inventory of pollutant sources,(64) promulgation of certain state regulations to reduce fugitive emissions,(65) and correction of unrelated minor deficiencies.(66) However, if the state fails to add the missing details within the allotted time period, EPA may disapprove the entire plan.(67) Notably, the courts have upheld EPA's power to grant a conditional approval only when it would not circumvent the CAA's substantive goals.(68)

The CAA also mandates that each SIP contain enforceable emission control measures(69) as well as a program to provide for their actual enforcement.(70) This requirement is crucial to the SIP program as it allows EPA to require a state to actually conform to the control measures contained in the state's SIP. However, as will be seen, Trustees for Alaska v. Fink raises important questions about the true meaning of enforceability in light of its holding that SIP commitments can be conditioned upon funding availability.(71)

3. Requirements for Nonattainment Areas

Congress reacted to the failure of states and municipalities to attain the goals of the CAA by passing the 1977 amendments.(72) These amendments required each state to designate as "nonattainment areas" those parts of the state that failed to meet the NAAQS promulgated by EPA.(73) Part D of the 1977 amendments provided specific state attainment deadlines and mandated particular provisions for inclusion in state SIPS.(74) Any state containing nonattainment areas had to revise its SIP to comply with the Part D requirements or be subject to sanctions.(75)

The 1990 amendments resulted from continued nonattainment; they require the EPA Administrator to categorize nonattainment areas(76) and establish attainment deadlines for each category.(77) Another new requirement is that each nonattainment area must achieve certain specified "milestones."(78) Congress intended these milestones to ensure that non-attainment areas remain on schedule in meeting the applicable deadlines.79 The milestones allow states to learn as quickly as possible whether their emission reduction measures are adequate. Failure to meet those milestones invokes a menu of sanctions.80

III. Judicial Enforcement of the CAA's Transportation

Planning Provisions

Numerous municipalities have focused on mass transit programs as a means of achieving CAA-mandated reductions in air pollutants. However, not all municipalities have been successful in actually implementing such programs, and consequently, many lawsuits involving transportation planning under the CAA include allegations of failure to implement mass transit systems.81 Thus, while the importance of mass transit as a transportation control measure may be decreasing,82 much of the existing case law addresses the problems encountered by municipalities and states in implementing promised mass transit systems.

Funding underlies many of the problems faced by states in attempting to implement pollution control through mass transit. Both the language of the CAA(83) and EPA's interpretation of that language84 support the proposition that a SIP must contain sufficient funding to accomplish transportation control measures included in the SIP. However, it is unclear if the requirement for "sufficient funding' for a SIP means that EPA cannot approve a SIP unless the funds are unconditionally guaranteed.

In Trustees for Alaska v. Fink,85 the plaintiffs urged the Ninth Circuit to hold that the CAA mandates EPA to require unconditional funding prior to approving a SIP.86 However, the court held that the CAA permits EPA to approve a SIP that contains a conditional funding commitment.87 This holding raises a potential conflict between conditional commitments and attainment of the CAA's substantive goals. The following discussion illustrates this conflict through an analysis of the relevant statutory language and case law.

A. Statutory Language and Interpretation

When interpreting the CAA, a court must decide if the statutory language is ambiguous.88 The majority of courts have decided that the language of the CAA is not ambiguous,89 with Trustees for Alaska being a notable exception.90 Only if a court concludes that the statutory language is ambiguous should it look to legislative history or agency interpretation for guidance in determining congressional intent.91 Consequently, most courts will not reach beyond the language of the CAA.

1. Statutory Language

Courts often cite section 110 of the CAA(92) when deciding that the CAA's language is unambiguous with regard to SIPs.(93) Section 110 states that any provision within a SEP proposal must be enforceable "as may be necessary or appropriate to meet the [CAA's] applicable requirements."94 Hence, transportation control measures such as mass transit programs included in a SIP must be enforceable. EPA attempts to ensure enforcement in part by requiring assurances that the state has earmarked sufficient funding to implement the plan.95 This is supported by the CAA's requirement that a SEP proposal must provide necessary assurances that the State ... will have adequate personnel, funding, and authority ... to carry out such [an] implementation plan."196

In accordance with this direct reading of the statutory language, the failure of a state to implement a conditional commitment in a SIP due to inadequate funding would not comply with the CAA's requirements. However, the Trustees for Alaska court found that because there was a good faith effort to obtain funding, a commitment conditioned on funding was permissible notwithstanding the statutory language.97 It is unclear whether other courts would construe the statutory language this way.

2. Interpretation

If a court were to find the language of the CAA ambiguous, then it should defer to EPA's interpretation of the language, unless that interpretation is unreasonable or conflicts with clear congressional intent.(98) Hence, the legislative history of the CAA may be important when trying to ascertain whether SIP commitments may properly be conditioned upon funding availability.

The CAA's legislative history reinforces the idea that the CAA requires adequate funding for SIPS.(99) The House Energy and Commerce Committee expressly noted that a SIP must contain assurances of adequate funding to implement its programs.(100) In the same report, the committee stated that it intended the Act "to send a strong message that Congress is very serious about the effort to achieve clean air, and will require all States to comply fully with the provisions of the Clean Air Act."(101) Senator John H. Chafee (R-R.I.), a member of the conference committee, commented that "it is necessary to do more than simply consider applicable control measures. They must be implemented, as well."(102) The Senate report noted that Congress's intent was to provide for improved air quality in order to protect it as a national resource.(103) The report also cautioned that one pitfall to be avoided is "`paper' demonstrations of attainment that bear little relation to the likelihood of actual attainment."(104) Thus, there is no direct legislative statement that transportation planning commitments cannot be conditioned upon funding availability. However, if a state's inability to implement pollution control measures on account of inadequate funding leads to a failure in achieving the state's CAA goals, then that lack of funding would lead to a result contrary to congressional intent. On the other hand, if a state does meet its CAA goals despite its failure to implement a particular control measure, then the frustration of congressional intent is less clear.

Once a court determines congressional intent, it should examine the reasonableness of EPA's statutory interpretation.(105) Several sources indicate that EPA interprets the CAA to require that each SIP proposal should specify a committed funding source. The first is an EPA regulation requiring "[e]vidence that the State has the necessary legal authority under State law to adopt and implement the plan."(106) According to an EPA official, this mandates that funding sources be identified and committed at the time of SIP approval.(107) If funding sources are not committed, then the agency considers the state to lack adequate authority to implement the plan.(108) A second regulation requires that every transportation control measure proposal contain a description of the resources available to carry out the proposed SIP.(109) A third source affirming EPA's commitment to enforceability is its recent General Preamble for Implementation of Title I of the CAA.(110) In this document, EPA contends that the purpose of a SIP is to "achieve the necessary reductions and otherwise meet the requirements of the Act."(111) If a state fails to designate a funding source, then in today's world of reduced governmental budgets, it is likely that the state will be unable to locate funding and the transportation control measure will not be implemented.

A fourth source supporting the concept of guaranteed funding is EPA's Inspection/Maintenance Program Requirements.(112) In this document, EPA states that because inadequate funding impairs program effectiveness, EPA will require each SIP proposal to include a demonstration that the state has sufficient resources to meet the standards set forth in the Inspection/Maintenance Program Requirements.(113) While this regulation does not specifically address transportation control measures, it is reasonable to extend the funding requirement to such measures because it would be illogical to mandate demonstrations of adequate funding for inspection and maintenance programs and leave other transportation control measures possibly unfunded.

Although the preceding paragraphs suggest that EPA regulations and commentary should be read to support enforcement of the CAA's substantive goals, these materials do not expressly prohibit conditioning commitments upon funding availability. Indeed, the Trustees for Alaska court found that EPA permits the use of conditional commitments.(114) However, the EPA materials relied upon by the court are susceptible to different interpretations. EPA's lack of clarity and the Trustees for Alaska holding will continue to generate confusion. If EPA or the courts allow states to condition SIP commitments upon funding availability, then the only enforceable promise may be one of good faith efforts to secure funding.

Notwithstanding this potential loophole, the CAA is very clear regarding attainment goals for regions around the country. If those goals are not met because states lack funding to carry out their SIP commitments, then the CAA will require EPA to enact FIPs to achieve the specified attainment goals.(115) EPA should issue precise guidelines on this funding issue or it may find itself saddled with numerous FIPs.(116) Such an eventuality would destroy the federal-state partnership envisioned by Congress when it approved the CAA.(117)

B. Case Law

Aside from Trustees for Alaska, no court has considered directly the specific question of whether transportation control measure implementation may be conditioned upon funding availability. However, courts have consistently held CAA's substantive goals to be paramount and have been willing to grant EPA flexibility in implementing CAA requirements provided that the substantive goals are met. This view is reflected in cases dealing with EPA conditional approvals, an issue that has been litigated numerous times.

1. The Supreme Court

The Supreme Court has interpreted the CAA and its legislative history to mandate strict enforcement of the CAA's substantive goals. In an early case, Train v. Natural Resources Defense Council,(118) the Court discussed whether sections 110(e) and (f) of the CAA would permit EPA to grant delays or modifications of the Act's attainment schedules.(119) EPA had interpreted the CAA to afford itself some flexibility in approving SIP proposals.(120) The Supreme Court held that EPA's interpretation was reasonable and required the lower courts to give deference to this interpretation.(121) The Court noted that EPA's interpretation precluded variances that interfered with attainment or maintenance of the NAAQS.(122)

The Court continued to focus on the CAA's substantive goals in Union Electric Co. v. EPA.(123) The plaintiff, an electric utility company, petitioned for review of EPA's SIP approval for Missouri after expiration of the petition filing deadline.(124) The Court rejected plaintiffs' argument for late review despite economic and technological difficulties that arose after the normal review period.(125) The Court held that the state may consider these factors when it is formulating the mix of control measures it plans to use to meet the requisite attainment goals,(126) but that once a measure is part of an approved SIP, the CAA bars EPA and reviewing courts from considering economic or technological feasibility concerns.(127) Hence, the Court made it clear that economic and technological concerns may never be used to frustrate the congressional intent of prompt attainment of the CAA's substantive goals.(128)

These cases demonstrate the Court's determination that the CAA's substantive goals must be held foremost. They show that deference will be given to EPA to provide flexibility to ensure that the substantive goals are met.

2. The Ninth Circuit

The Ninth Circuit has a large body of case law dealing with transportation issues under the CAA, virtually all of which supports the idea that the CAA's primary goal is actual implementation of its substantive provisions. One early case, Kamp v. Hernandez,(129) centered on a challenge to EPA's conditional approval of Arizona's plan to control sulfur dioxide emissions from copper smelters.(130) The court held that EPA could approve a SIP that was only partially complete if it had "assurance that the state will promptly complete the plan and if the approval of the incomplete plan does not circumvent any of the Act's substantive requirements."(131) Hence, the court willingly granted EPA flexibility so long as the state achieved the CAA's substantive goals.

Two years later, the court took a similar view in Abramowitz v. EPA,(132) a case involving the South Coast Air Basin area of Los Angeles.(133) In a challenge to EPA's approval of certain air pollution control measures, the Abramowitz court held that EPA had exceeded its authority when it approved control measures without determining that the state would attain the requisite NAAQS by the statutory deadline.(134) The court insisted that EPA "face up to implementing the [required CAA] measures," despite the manifest difficulties presented by the problems of the South Coast A& Basin.(135) In Coalition for Clean Air v. EPA,(136) a related case involving the South Coast Air Basin, the Ninth Circuit required California and EPA to comply with the substantive requirements of the CAA, despite the possibility that this would require Draconian measures.(137) The plaintiffs had filed suit to compel EPA to prepare a FIP for the South Coast Air Basin.(138) The court, while recognizing the difficulties faced by both the South Coast Air Basin and EPA in complying with the CAA,(139) nevertheless found EPA's FIP obligation to be mandatory under the CAA's plain language.(140) These two cases indicated that the Ninth Circuit would require states to comply with the CAA's substantive goals, regardless of compliance difficulty.

A pair of cases involving the Arizona SIP appeared to reinforce the Ninth Circuit's commitment to enforcement of the substantive goals of the CAA. In Delaney v. EPA,(141) the court took the strong step of ordering EPA to promulgate a FIP for Arizona.(142) When two counties in Arizona failed to achieve their attainment goals by the statutory deadlines, EPA granted the counties an extension of the deadlines.(143) The Ninth Circuit held the extension exceeded EPA's authority, noting a clear congressional intent that when a deadline is not met, the NAAQS "must be attained as soon as possible with every available control measure."(144) Thus, again, the court refused to allow EPA to delay achievement of the CAA's substantive goals by granting an extension of the compliance deadline.

In McCarthy v. Thomas,(145) the Ninth Circuit revisited the implementation measures ordered in Delaney. The McCarthy court refused to allow two Arizona counties to escape their SIP commitments by way of a technicality. When the counties failed to expand their mass transit systems, the plaintiff, a citizens' group, files suit to compel the counties to comply with the approved SIP measures.(146) The counties argued, and the district court agreed, that because the final approval documents did not contain language specifically adopting the mass transit provisions, the counties had no obligation to expand their mass transit systems.(147) The Ninth Circuit rejected this argument, finding that EPA had approved the mass transit provisions as part of an earlier conditional approval and that EPA had intended those provisions to be part of the final SIP.(148) The court observed that Kamp controlled the issue of whether the CAA permitted EPA to make conditional approvals that would later become binding upon the states.(149) Even if Kamp were not controlling, the court would have deferred to EPA's reasonable construction of the CAA.(150) Hence, the Ninth Circuit once again ruled in favor of enforcing the substantive goals of the CAA.

These two decisions indicated that the Ninth Circuit would require strict compliance with the CAA's substantive goals. However, in Trustees for Alaska v. Fink,(151) the Ninth Circuit held that Anchorage could condition its SIP commitment to expand its mass transit system upon funding availability.(152) When Anchorage failed to implement the transit system promised by its 1982 SIP, a citizens' group filed suit against the City of Anchorage and its mayor, Tom Fink, claiming that the CAA did not permit conditional commitments.(153) Holding for the defendants, the district court found that the CAA permitted Anchorage to condition its SIP commitment upon funding availability and that the city was not in violation of the CAA, because it had made good faith, albeit unsuccessful, efforts to obtain the necessary funding.(154) On appeal, the Ninth Circuit, in a de novo review, affirmed that the CAA permitted Anchorage to condition its SIP commitment to expand its transit system upon conditional funding availability.(155) The court then held that because Anchorage had made reasonable attempts to obtain funding, the city was not required to fulfill its SIP commitment.(156)

To reach this first impression holding, the Trustees for Alaska court first noted that the CAA language was ambiguous with regard to the nature of SIP commitments.(157) In light of the perceived ambiguity, the court looked to EPA's interpretation of the relevant statutory language and found that EPA documents permitting conditional approvals were a reasonable interpretation of the statute.(158) The court also found the legislative history of the CAA to support the view that economic and social costs should be considered when determining whether a transportation control measure is reasonably available under the CAA's requirements.(159) Finally, the court noted that commitments generally can be subject to conditions precedent.(160)

In holding that a city can condition its SIP commitments upon funding availability,(161) the Trustees for Alaska court relied on a 1981 EPA policy statement concerning attainment date extensions for plan revisions.(162) This policy states that funding difficulties may permit the delay, but not the elimination, of transportation control measure implementation.(163) When quoting this portion of the policy, the court omitted a qualifying condition for permitting delay(164) namely, that SIP planning agencies must demonstrate compliance with every CAA provision designated for priority treatment.(165) Such provisions include air quality and transportation goals.(166) Thus, EPA could have permitted Anchorage to delay implementation of its mass transit system only if the city could demonstrate compliance with the SIP goal of improved air quality. In fact, Anchorage did argue that it could demonstrate compliance with the SIP goals without expanding its mass transit system.(167) In its brief, the city argued that this controversy was moot because it previously adopted a different plan that no longer required expansion of the mass transit system to achieve the SIP goals.(168) While the court could have reached the same result by adopting this mootness argument, it instead chose an argument that has potentially far-reaching results.

Thus, prior to Trustees for Alaska, it appeared that the Ninth Circuit would solidly uphold the substantive goals of the CAA. In Trustees for Alaska, the court allowed Anchorage to condition its SIP commitment on funding availability. This ruling raises the possibility that states may evade the substantive goals of the CAA by showing an inability to secure the funds required for a SIP commitment.

3. Other Circuit Courts

Other circuit courts generally agree with the earlier Ninth Circuit decisions holding that the CAA's substantive goals are paramount and that EPA should be afforded flexibility, provided that the substantive goals are not thereby avoided. Cases from the Second and Fifth Circuits are exemplary.

The Second Circuit, the only other circuit besides the Ninth Circuit with a significant body of case law in this area, has consistently enforced the CAA's substantive goals. In Friends of the Earth v. Carey,(169) the Second Circuit observed that Congress's overriding objective in passing the CAA was attainment of the NAAQS.(170) It Stated that "Congress decreed that whatever time and money otherwise might be saved should not be gained at the expense of the lungs and health of the community's citizens."(171) s early view of congressional intent continues to guide the Second Circuit.

Subsequently in Connecticut Fund for the Environment v. EPA,(172) the Second Circuit upheld the use of conditional SIP approvals.(173) In doing so, the court stated that the focus of its inquiry was not the procedural defects of the SIP approval process but "whether the substance of the action satisfies the substantive requirements of the Act."(174) The court cautioned that, although conditional approvals were within EPA's authority, conditional approvals cannot be used to "circumvent substantive requirements of the [Act]."(175) Even though this case involved stationary sources of pollution, its thorough analysis approving EPA's use of conditional approvals remains valid for the CAA in general. The Second Circuit affirmed its acceptance of conditional approvals in Council of Commuter Organizations v. Gorsuch.(176) In this case, the court demonstrated its concerns over funding availability and the achievement of substantive CAA goals by ordering EPA to "reevaluate the adequacy of the [state implementation] plan's funding provisions in light of recent federal funding cutbacks and recent developments regarding state aid for mass transit."(177)

While other circuits have discussed various aspects of the CAA, the Fifth Circuit is the only other circuit to directly hold that judicial inquiry should focus on whether a SIP will actually achieve the CAA's ultimate goal of cleaner air. In City of Seabrook v. EPA,(178) the court upheld EPA's use of conditional SIP approvals, provided that such conditional approvals did not prevent or delay achievement of the CAA's substantive goals.(179) In an extensive analysis often cited by other courts,(180) the Fifth Circuit found that the CAA did not prevent EPA from using conditional approvals, and that EPA's interpretation of the statute was reasonable and thus entitled to deference.(181) This demonstrates the Fifth Circuit's concern with achievement of the CAA's substantive goals.

IV. CONCLUSION

The Clean Air Act attempts to remedy the nation's serious air pollution problems. Even though the CAA's goal of improving air quality is a simple one, the regulatory procedure is extraordinarily complex. Despite this complexity, the federal circuit courts have been remarkably uniform in upholding the primacy of the CAA's substantive goals. This judicial uniformity has meant one less stumbling block to actual air quality improvement in the nation's cities.

Trustees for Alaska aside, every court that has addressed CAA transportation planning issues has held that the CAA's substantive goals are paramount. Courts consistently grant EPA flexibility in implementing CAA provisions only to the extent that such flexibility does not delay or prevent attainment of the CAA's substantive goals. This approach should be followed in all cases dealing with the issue of funding availability and SIP approval. Courts should not permit states to use conditional funding commitments to evade their CAA responsibilities; to do so would be contrary to congressional intent.

Trustees for Alaska creates a potential loophole in the CAA. While the court's result may be analytically defensible, the decision did not address the crucial issue of the effect of nonimplementation of the planned mass transit improvement. Because the court decided the case solely on the permissibility of conditional commitments, it did not reach the issue of actually improving air quality. As explained above, actual improved air quality is the CAA's unqualified goal. Hence, the issue of whether states can condition their SIP commitments upon funding availability is less important than whether there is actual improved air quality. Future courts should concentrate their attention on this latter question.

Another question left open by the Trustee for Alaska panel by not deciding the issue of whether Anchorage had actually improved its air quality without implementing the promised mass transit expansion is whether a state can use its SIP as a defense to a charge of nonattainment. In other words, can a state failing to achieve its attainment goals defend itself by proving it fully complied with every aspect of its SIP?(182) If a state can use this defense and if it can condition its SIP commitments upon funding availability, then the CAA's concept of enforceability is illusory at best. Trustees for Alaska should not be read to permit states to evade their CAA obligations because of funding difficulties; such a reading goes beyond the holding of the case and would directly conflict with congressional intent and prior court decisions, including Ninth Circuit case law.

Trustees for Alaska does not go so far as to allow a state to excuse a failure to meet CAA attainment requirements on account of funding shortages; doing so would completely undermine the CAA's purpose. Accordingly, EPA must be strong in its support for the CAA's goal of improved air quality. To ensure that funding shortages are not allowed to excuse state noncompliance with the CAA, EPA should issue regulations that prevent states from conditioning their SIP commitments upon funding availability.

(179) Id. at 1357. (180) See, e.g., McCarthy v. Thomas, 27 F.3d 1363, 1369 (9th Cir. 1994); Kamp v. Hernandez, 752 F.2d 1444, 1455 (9th Cir.), modified, 778 F.2d 527 (9th Cir. 1985). (181) City of Seabrook, 659 F.2d at 1356. (182) This is analogous to the Clean Water Act's (CWA) "permit as a shield" concept. Federal Water Pollution Control Act, 33 U.S.C. [sections] 1342(k) (1988 & Supp. V 1993). However, one distinction between these situations is that CWA permits are focused on individual permittees, while the CAA's SIPS are focused on entire states. Thus, the CWA allows permits to be used as a shield because permittees do not have the ability to affect other dischargers. On the other hand, states implement the CAA's goals and states have both the broad viewpoint and the ability to impact every pollution source within their borders. (1) In its Report for the 1990 Clean Air Act Amendments, the Senate noted that "[tlhere is no choice but to breathe the air, whether it is clean or polluted.. S. REP. No. 228, 101st Cong., 2d Sess. 3 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3389. (2) U.S. Dep't of Transp. & Envtl. Protection Agency, Clean Air Through Transportation: Challenges in Meeting National Air Qualm Standards 1 (1993) [hereinafter DOT/ EPA Report]. (3) 42 U.S.C. [subsections] 7401-7671 (1998 & Supp. V 1993). (4) Subchapter I - program and Activities, id. [subsections] 7403-7515. (5) Subchapter II - Emission Standards for Moving Sources, id. [subsections] 7521-7590. (6) 27 F.3d 1363 (9th Cir. 1994). (7) 17 F.3d 1209 (9th Cir. 1994). (8) 898 F.2d 687 (9th Cir.), cert. denied, 498 U.S. 998 (1990). (9) Id. at 692. (10) Id. at 695. For a discussion of FIPs, see infra part II.B.2. (11) For a discussion of SIPS, see infra part II.B.2. (12) McCarthy v. Thomas, 27 F.3d 1363, 1367 (9th Cir. 1994). (13) Id. at 1363. (14) Id. at 1373. (15) See infra part III.A. (16) Trustees for Alaska v. Fink, 17 F.3d 1209, 1212 (9th Cir. 1994). (17) Id. at 1212-13. (18) Theodore L. Garrett & Sonya D. Winner, A Clean Air Primer: Part I, 22 [News and Analysis] Envtl.L. Rep. (Envtl. L. Inst.) 10,159, 10,168 (Mar. 1992 (19) Arnold W. Reitze, Jr., A Century of Air Pollution Control Law: What's Worked; What's Failed; What Might Work, 21 Envtl. L. 1549, 1550-51 (1991). (20) Garrett & Winner, supra note 18, at 10,161. (21) 42 U.S.C. [sections] 7401 (1988 & Supp. V 1993). (22) Air Pollution Act of 1955, ch. 360, 69 Stat. 322 (1955). (23) Clean Air Act, Pub. L. No. 88-206, 77 Stat. 392 (1963). (24) Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485 (1967). (25) Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970). (26) Garrett & Winner, supra note 18, at 10,161. (27) H.R. REP. No. 490, 101st Cong., 2d Sess., pt. 3, at 3-4 (1990). (28) Id. Of all the aspects of the CAA as it exists today, this federal-state partnership is arguably the single most important one. It is responsible for many of the delays in implementation of the CAA's substantive goals, because it adds a layer of procedural complexity and consequent delay. See S. REP. No. 228, 101st Cong., 2d Sess. 11 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3397. (29) S. REP. No. 228, 101st Cong., 2d Sess. 11 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3397. (30) Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (1977). (31) This section includes transportation planning provisions. 42 U.S.C. [sections] 7504 (1988 & Supp. V 1993). (32) Pub. 1. No. 95-95, [sections] 172(a), (c), 91 Stat. 685, 746-48 (1977) (formerly codified at 42 U.S.C. [sections] 7502(a), (c)) (requiring attainment of national primary ambient air quality standards no later than 1987). In 1990, Congress amended these provisions to require nonattainment areas to achieve attainment within five years of designation. Pub. L. No. 101-549, [sections] 102(b), 104 Stat. 2412 (codified as amended at 42 U.S.C. [sections] 7502(a)(2) (Supp. V 1993)). (33) H.R. REP. No. 490, 101st Cong., 2d Sess., pt 3, at 4 (1990). (34) Garrett & Winner, supra note 18, at 10,162; see also S. REP. No. 228, 101st Cong., 2d Sess. 11 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3397 (noting that in 1989, 150 million people still lived in areas exceeding the NAAQS established by the 1977 amendments). (35) Henry A. Waxman, An Overview of the Clean Air Act Amendments of 1990, 21 Envtl. L 1721, 1723 (1991). (36) Revisions include changes to the plan adoption criteria of section 110(a), 42 U.S.C. [sections] 7410(a) (1988 & Supp. V 1993), and the addition of sanctions, 42 U.S.C. [sections] 7410(m) (Supp. V 1993). The extensive requirements for nonattainment areas are found in the new Part D - Plan Requirements for Nonattainment Areas. For a discussion of the new requirements, see infra part II.B.3. (37) The sanctions include a cutoff of highway funding and an increase in the offset requirement for new sources. 42 U.S.C. [sections] 7509 (Supp. V 1993). (38) The Act's other transportation planning requirements are in Subchapter II - emission Standards for Moving Sources. 42 U.S.C. [subsections] 7521-7590 (1988 & Supp. V 1993). This part includes emission standards for new vehicles, id. [sections] 7521, and standards and requirements for the use of clean fuel vehicles, 42 U.S.C. [subsections] 7581-7590 (Supp. V 1993). (39) 42 U.S.C. [sections] 7409 (1988 & Supp. V 1993). (40) Id. [sections] 7410. (41) Id. [subsections] 7510-7515. (42) 42 U.S.C. [sections] 7409(b)(1) (1988) (primary standards). Public health includes "the health of susceptible individuals, as wen as healthy adults," a very standard. S. REP. No. 1196, 91st Cong., 2d Sess. 9, 10 (1970); H.R. REP. No. 294, 95th Cong., 1st Sess. 50 (1977). (43) 42 U.S.C. [sections] 7409(b)(2) (1988) (secondary standards). (44) National Primary and Secondary Ambient Air Quality Standards, 40 C.F.R. [sections] 50.2 (1994). (45) 42 U.S.C. [sections] 7409 (1988). The agency must carry a burden of proving demonstrable harm by a given substance. Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.), cert. denied, 426 U.S. 941 (1976). (46) 40 C.F.R. [sections] 50.2(b) (1994). (47) Natural Resources Defense Council v. Train, 545 F.2d 320, 328 (2d Cir. 1976) (holding that once lead met the criteria of section 108 for air quality, the Act required EPA to list it). (48) See Natural Resources Defense Council v. EPA, 902 F.2d 962 (D.C. Cir. 1990), vacated in part, 921 F.2d 326 (D.C. Cir.), cert. dismissed, 498 U.S. 1075 (1991) (per curiam) finding that unemployment costs are not a permissible consideration). (49) American Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981), cert. denied, 445 U.S. 1034 (1982) (holding that EPA may consider neither economic nor technological feasibility). (50) 42 U.S.C. [sections] 7410(a)(1) (1988 & Supp. V 1993). (51) 40 C.F.R. pt. 50 (1994). (52) Id. [sections] 50.4-.12. For four of the pollutants, primary and secondary standards are the same (ozone, particulate matter, lead, and nitrogen dioxide). Sulfur dioxide has a separate secondary standard and carbon monoxide has no secondary standard. Id. (53) A 1989 EPA report noted that "[t]he process of reviewing and judging SIPS has been a constant struggle for EPA and the States and is a source of increasing tension." Envmtl. Protection Agency, State Implementation Processing Plan Reform, 54 Fed. Reg. 2214, 2216 (1989). (54) 42 U.S.C. [sections] 7410(a)(1) (1988 & Supp. V 1993). (55) Id. [sections] 7410(a)(2); see also Train v. Natural Resources Defense Council, 421 U.S. 60, 65 (1975) (affirming the mandatory nature of EPA's obligation to approve a SIP that satisfies the Act's requirements). (56) 42 U.S.C. [sections] 7410(k)(1) (Supp. V 1993). Once EPA receives a SIP submittal, it has 60 days to determine whether that submittal meets the CAA criteria. Id. [sections] 7410(k)(1)(b). If the agency falls to complete its review within that time, the submittal is deemed to meet the criteria. Id. Once EPA determines the plan is complete, it has 12 months to approve or disapprove the plan in whole or in part. Id. [sections] 7410(k)(2). Until EPA approves a SIP proposal, the state is not in compliance with the CAA and is subject to sanctions. Id. [sections] 7509(a). (57) See, e.g., City of Seabrook v. EPA, 659 F.2d 1349, 1356 (5th Cir. 1981), cert. denied sub nom. Vavra v. EPA, 459 U.S. 822 (1982) (affirming EPA's interpretation since it was not "plainly unreasonable"); Trustees for Alaska v. Fink, 17 F.3d 1209, 1211 (9th Cir. 1994) (noting that the court would defer to EPA's reasonable interpretation of the CAA). (58) Garrett & Winner, supra note 18, at 10,169; see also Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1037 (7th Cir. 1984) (holding that EPA has power to grant partial approvals for SIP portions that conform to the Act while disapproving the nonconforming portions). (59) 42 U.S.C. [sections] 7410(c) (1988 & Supp. V 1993); see Delaney v. EPA, 898 F.2d 687 (9th Cir. 1987), cert. denied, 498 U.S. 998 (1990). (60) Garrett & Winner, supra note 18, at 10,171. In the 1970s, EPA promulgated at least two FIPs. See Texas v. EPA, 499 F.2d 289, 293 (5th Cir. 1974), cert. denied, 427 U.S. 905 (1976); South Terminal Corp. v. EPA, 504 F.2d 646, 654 (1st Cir. 1974). (61) 42 U.S.C. [sections] 7410(k)(4) (Supp. V 1993) (conditional approval of SIP allowed if a state commits to adopt specific enforceable measures not later than one year after the date of approval of the plan revision). (62) Telephone Interview with Bonnie Thie, Assistant Regional Counsel for EPA Region 10 (Feb. 13, 1995). EPA attempts to work closely with states throughout the SIP process. Id. States submit draft SIP proposals to EPA in order to prevent later complications; the state, in effect, requests a conditional approval and EPA then decides whether to grant one. Id. (63) For a good discussion of EPA's power to grant conditional approvals, see City of Seabrook v. EPA, 659 F.2d 1349, 1353-57 (5th Cir. 1981), cert. denied sub nom. Vavra v. EPA, 459 U.S. 822 (1982). (64) Connecticut Fund for the Env't v. EPA, 672 F.2d 998, 1004 (2d Cir.), cert. denied, 459 U.S. 1035 (1982). (65) Kamp v. Hernandez, 752 F.2d 1444, 1449 (9th Cir.), modified, 778 F.2d 527 (9th Cir. 1985). (66) McCarthy v. Thomas, 27 F.3d 1363, 1365 (9th Cir. 1994). (67) The CAA specifies that if the state fails to fulfill the condition within one year after the conditional approval date, then the conditional approval automatically becomes a disapproval. 42 U.S.C. [sections] 7410(k)(4) (Supp. V 1993). The state and EPA can agree to a shorter time period. Telephone Interview with Bonnie Thie, Assistant Regional Counsel for EPA Region 10 (Feb. 13, 1995). (68) See Kamp, 752 F.2d at 1455; Connecticut Fund for the Env't, 672 F.2d at 1007; City of Seabrook v. EPA, 659 F.2d 1349, 1357 (5th Cir., 1981), cert. denied sub nom. Vavra v. EPA, 459 U.S. 822 (1982). (69) 42 U.S.C. [sections] 7410(a)(2)(a) (1988 & Supp. V 1993). (70) Id. [sections] 7410(a)(2)(c). (71) See infra part III.B.2. (72) Garrett & Winner, supra note 18, at 10,173. (73) Clean Air Act Amendments of 1977, Pub. L. No. 95-95, [sections] 103, 91 Stat. 685, 687-88 (formerly codified at 42 U.S.C. [sections] 7407(d) (1988) (amended 1990)). (74) Safe Drinking Water Amendments of 1977, Pub. L No. 95-190, [sections] 14(a)(55), (56), 91 Stat. 1393, 1402 (1988) (amended 1990). (75) Sanctions then included withholding of federal funding for certain projects, Pub. L. No. 95-95, [sections] 176(a), 91 Stat. 685, 749-750 (formerly codified at 42 U.S.C. [sections] 7506(a) (1988) (repealed 1990)), and still include a moratorium on construction or modification of major stationary sources, 42 U.S.C. [sections] 7413(a)(5) (1988 & Supp. V 1993). (76) The CAA determines the categories according to the severity of the areas air pollution. For ozone nonattainment areas, the categories are (in order of increasing severity): marginal, moderate, serious, severe, and extreme. 42 U.S.C. [sections] 7511(a) (Supp. V 1993). For carbon monoxide nonattainment areas, the categories are moderate and serious. Id. [sections] 7512(a). Congress initially classified all particulate matter nonattainment areas as moderate, id. [sections] [sections] 7531(c), but the Act provides that EPA can reclassify them as serious if certain conditions are met, id. [sections] 7513(b). Sulfur dioxide, nitrogen dioxide, and lead do not have different nonattainment categories. (77) Id. [sections] 7502(a)(2) (general); id. [sectios] 7511(a)(1) (ozone); id. [sections] 7512(a)(1) (carbon monoxide); id. [sections] 7513(a), (b) (particulates). These nonattainment area provisions are extremely detailed in their requirements. For example, a region designated as "serious" nonattainment for ozone must comply with its NAAQS within nine years of the enactment of the 1990 amendments. Id. [sections] 7511(a)(1) (Table 1). The region can obtain up to two one-year extensions if it satisfies certain requirements. Id. [sections] 7511(a)(5). A failure to achieve those deadlines results in an automatic classification to the next highest level (such as "extreme"), resulting in the area having to meet the new level's increased requirements. Id. [sections] 7511(b)(2)(a). (78)Id. [sections] 7511a implementing through subsection (g) "milestones" for ozone nonattainment areas). Milestones are intervals established by the CAA that set certain levels of emissions reductions that states must achieve. Henry A. Waxman et al., Roadmap to Title I of the Clean Air Act Amendments of 1990: Bringing Blue Skies Back to America's Cities, 21 EN=. L. 1843, 1888 (1991). (79) H.R. REP. No. 490, 101st Cong., 2d Sess., pt. 1, at 246 (1990). (80) See, e.g., 42 U.S.C. [sections] 7511(a) (Supp. V 1993) (requiring states to choose one of three remedies: reclassification, implementation of additional measures, or adoption of an economic incentive program). (81) See, e.g., Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976), cert. denied, 434 U.S. 902 (1977); Council of Commuter Orgs. v. Gorsuch, 683 F.2d 648 (2d Cir. 1982); McCarthy v. Thomas, 27 F.3d 1363 (9th Cir. 1994); Trustees for Alaska v. Fink, 17 F.3d 1209 (9th Cir. 1994). (82) It is likely that fewer planning organizations will choose to depend on mass transit as a primary transportation control measure for meeting the CAA's goals, because mass transit has a high cost-per-reduction-of-pollutants ratio and a low effectiveness in meeting reduction requirements. DOT/EPA Report, Supra note 2, at 11-12, 15 tbl. 2. For example, one study estimated that for the Los Angeles area, a 5096 expansion in bus service and 300 new miles of rail service would result in reductions of only .9% for hydrocarbons and 3. 1% for carbon monoxide. Id. at 13 tbl. 1. However, the study estimated that a 25% reduction in home-to-work commuting distance, achievable through land use planning, would result in reductions of 4. 1% for hydrocarbons and 11.8% for carbon monoxide. Id. (83) 42 U.S.C. [sections] 7410(a)(2)(e) (1988 & Supp. V 1993) (mandating that a SIP shall provide necessary assurances that the State ... will have adequate personnel, funding, and authority . . . to carry out" the SIP). (84) Criteria for Determining the Completeness of Plan Submissions, 40 C.F.R. pt. 51 app. V (1994). For the agency interpretation, see infra notes 106-13 and accompanying text. (85) 17 F.3d 1209 (9th Cir. 1994). (86) Id. at 1211. (87) Id. at 1212. (88) Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). (89) See, e.g., Union Elec. Co. v. EPA, 427 U.S. 246, 265 (1976) (discussing the SIP criteria of section 1 10(a)); Connecticut Fund for the Env't v. EPA, 672 F.2d 998, 1008 (2d Cir.), cert. denied, 459 U.S. 1035 (1982) (focusing on the general standards for SIPS in section 1 10(a)(2)); Council of Commuter Orgs. v. Gorsuch, 693 F.2d 648, 657 (2d Cir. 1982) (centering on the requirements of section 110(c)(5)(b)); Coalition for Clean Air v. EPA, 971 F.2d 219, 227 (9th Cir. 1992), cert. denied, 113 S. Ct. 1361 (1993) examining the savings provisions of section 110(c)(1)(B)). (90) Trustees for Alaska v. Fink, 17 F.3d 1209, 1211 (9th Cir. 1994). (91) Chevron, 467 U.S. at 842-43. (92) 42 U.S.C. [sections] 7410(a)(2)(a) (1988 & Supp. V 1993). (93) See, e.g., Union Elec. Co., 427 U.S. at 265; Coalition for Clean Air, 971 F.2d at 224-25. (94) 42 U.S.C. [sections] 7410(a)(2)(a) (1988 & Supp. V 1993). (95) See infra notes 106-13 and accompanying text. (96) 42 U.S.C. [sections] 7410(a)(2)(e) (1988 & Supp. V 1993). (97) Trustees for Alaska v. Fink, 17 F.3d 1209, 1211 (9th Cir. 1994). (98) Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). (99) Due to the lengthy and contentious approval process of the 1990 amendments, special care needs to be taken when considering their legislative history. Waxman, supra note 35, at 1741-42. Although the Senate added some amendments, the bulk of the existing Act was taken from the report issued by the House Committee on Energy and Commerce on H.R. 3030, 101st Cong., 1st Sess. (1989). Theodore L. Garrett & Sonya D. Winner, A Clean Air Act Primer: Part III, 22 [News and Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,301, 10,321 (May 1992). Thus, House Report No. 490, 101st Cong., 2d Sess. (1990), is arguably the best source for legislative history of the current CAA for this area. Garrett & winner, supra note 99, at 10,321. (100) H.R. REP. No. 490, 101st Cong., 2d Sess., pt. 1, at 218 (1990). (101) Id. at 228. (102) 136 Cong. Rec. S16,956 (daily ed. Oct. 27, 1990) (statement of Sen. Chafee). The bilateral support for enforcement of the Act's goals is demonstrated by Senator George J. Mitchell's (D-Me.) admonition that aggressive enforcement is the key to emissions reductions. Id. at S16,903. (103) S. Rep. No. 228, 101st Cong., 2d Sess. 2-3 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3388-89. (104) Id. at 11, reprinted in 1990 U.S.C.C.A.N. at 3397. (105) Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1994). (106) Criteria for Determining the Completeness of Plan Submissions, 40 C.F.R. pt. 51, app. V [sections] 2.1(c) (1994). (107) Telephone interview with Christie Lee, EPA Region 10 SIP Manager for Oregon and Alaska (Oct. 20, 1994). (108) Id. This is a broad interpretation of the legal authority language, which is one reason the author for more explicit agency interpretation documentation. See infra part IV. (109) Miscellaneous Plan Content Requirements, 40 C.F.R. [sections] 51.280 (1994). (110) State Implementation Plans: General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 Fed. Reg. 13,498 (Apr. 16, 1992). (111) Id. at 13,567. (112) 40 C.F.R. pt. 51, [subsections] 51.350-.373 (1994). (113) Inspection/Maintenance Program Requirements, 57 Fed. Reg. 52,950, 52,592 (1992) (codified at 40 C.F.R. pt. 50 (1994)). (114) Trustees for Alaska v. Fink, 17 F.3d 1209, 1211-12 (9th Cir. 1994). (115) The mandatory nature of EPA's duty to promulgate a FIP is supported by both Delaney v. EPA, 898 F.2d 687 (9th Cir.), cert. denied, 498 U.S. 998 (1990), and Coalition for Clean Air v. EPA, 971 F.2d 219, 225 (9th Cir. 1992), cert. denied, 113 S. Ct. 1361 (1993). (116) Until EPA publishes new guidelines or rules addressing commitments conditioned upon funding availability, the Agency may consider not allowing a state to apply any proposed reductions from such conditional control measures to the state's overall SIP goals. Thus, if a state believed it would achieve a certain level of air quality improvement from a mass transit expansion measure that would only be implemented if the state secured funding, then EPA should not permit the state SIP to depend upon those proposed reductions until funds are actually secured. While EPA will need to clarify the precise definition of "actually secured," this approach prevents EPA from approving SIPs based upon illusory air quality improvements. (117) Garrett & Winner, supra note 18, at 10,161. (118) 421 U.S. 60 (1975). Section 110(e) provides that the EPA Administrator can permit two-year extensions. 42 U.S.C. [sections] 7410(e) (1988). Section 110(f) permits attainment extensions due to national or regional emergencies. 42 U.S.C. [sections] 7410(f) (1988). (119) Train, 421 U.S. at 84-86. (120) Id. at 73-74. (121) Id. at 86-87. (122) Id. at 74. (123) 427 U.S. 246 (1976). (124) Id. at 253. At that time, the allowable period to request review of a final agency action was 30 days. The Act now permits 60 days to Me these petitions. 42 U.S.C. [sections] 7607(b)(1) (Supp. V 1993). (125) Union Electric Co., 427 U.S. at 265. (126) Id. at 266. (127) Id. at 265. (128) Id. at 268-69. (129) 752 F.2d 1444 (9th Cir.), modified, 778 F.2d 527 (9th Cir. 1985). (130) Id. at 1446. (131) Id. at 1455. (132) 832 F.2d 1071 (9th Cir. 1987). (133) This area has some of the nation's most serious air pollution problems, especially for ozone and carbon monoxide. A 1990 House Report notes that the Los Angeles area is in the "extreme" nonattainment category for ozone and the "serious" nonattainment category for carbon monoxide. These are the CAA's highest ratings for pollutant levels. H.R. Rep. No. 490, 101st Cong., 2d Sess., pt. 1, at 230-31, 258-59 (1990). (134) Abramowitz, 832 F.2d at 1072-73. (135) Id. at 1073. (137) Id. at 223 (citing a letter from EPA Administrator William Reilly, reprinted in 136 Cong. Rec. H2886-87 (daily ed. May 23, 1990)). (138) Id. at 222-23. (139) Id. (140) Id. at 225. (141) 898 F.2d 687 (9th Cir.), cert. denied, 498 U.S. 998 (1990). (142) Id. at 695. (143) Id. at 689-90. (144) Id. at 691. (145) 27 P.3d 1363 (9th Cir. 1994). (146) Id. at 1364. (147) Id. at 1368-69. (148) Id. at 1368. EPA had earlier conditionally approved the overall SIP, subject to corrections of deficiencies unrelated to the mass transit provision. Id. at 1365. EPA gave final approval to the overall SIP, but the Delaney court vacated that approval. Id. at 1366. However, the McCarthy court found that EPA never intended to rescind the mass transit aspects of the vacated overall SIP. Id. at 1366-67. (149) Id. at 1368-69. (150) Id. at 1369-70. (151) 17 F.3d 1209 (9th Cir. 1994). (152) Id. at 1210. (153) Id. (154) Id. at 1210-11. (155) Id. at 1212. (156) Id. at 1212-13. (157) Id. at 1211. This contrasts with earlier cases in which the court found the CAA's language to be clear and unambiguous. See, e.g., Coalition for Clean Air v. EPA, 971 F.2d 219, 227 (9th Cir. 1992), cert. denied, 113 S. Ct 1361 (1993) (refusing to engage in a lengthy examination of the legislative history when statutory language is clear); Abramowitz v. EPA, 832 F.2d 1071, 1079 (9th Cir. 1987) (refusing to defer to EPA's interpretation of the general nonattainment provisions in section 172). (158) Trustees for Alaska, 17 F.3d at 1211. (159) Id. (referring to the CAA's requirement that nonattainment plans "provide for implementation of all reasonably available control measures as expeditiously as possible" in section 172(b)(2)). (160) Id. at 1211-12. (161) Id. at 1212. (162) State Implementation Plans: Approval of 1982 Ozone and Carbon Monoxide Plan Revisions for Areas Needing an Attainment Date Extension, 46 Fed. Reg. 7182 (1981). (163) Id. at 7183. (164) Trustees for Alaska, 17 F.3d at 1211. (165) 46 Fed. Reg. at 7183. (166) Id. (167) Brief of Appellees at 15-16, Trustees for Alaska v. Fink, 17 F.3d 1209 (9th Cir. 1994) (No. 92-36932). (168) Id. at 17. (169) 535 F.2d 165 (2d Cir. 1976), cert. denied, 434 U.S. 902 (1977). (170) Id. at 179-80. (171) Id. at 179 (citing H.R. Rep. No. 1146, 91st Cong., 2d Sess. 4-5 (1970)). This citizen suit involved the Transportation Control Plan for the Metropolitan New York City Area. The district court declined jurisdiction over the suit, stating that it lacked expertise in this "highly technical" area. Friends of the Earth v. Wilson, 389 F. Supp. 1394, 1396 (S.D.N.Y. 1974). The circuit court found that jurisdiction under the CAA citizen suit provisions was not discretionary and that the district court was obligated to grant appropriate relief once the plaintiffs showed a violation by the state. Carey, 535 F.2d at 173. Even though this case involved an early version of the Act, its focus on preventing obstacles to achieving the Act's goal of cleaner air remains valid. (172) 672 F.2d 998 (2d Cir.), cert. denied, 459 U.S. 1035 (1982) (involving a challenge to the overall EPA conditional approval of Connecticut's SIP and specific portions of the SIP). (173) Id. at 1006. (174) Id. at 1011. (175) Id. at 1007. (176) 683 F.2d 648 (2d Cir. 1982). This case involved a challenge to New York City's mass transit improvement program implementation. Id. at 650-51. (177) Id. at 663. (178) 659 F.2d 1349 (5th Cir. 1981), cert. denied sub nom. Vavra v. EPA, 459 U.S. 822 (1982). The plaintiffs complained that EPA was not forcing Texas to comply with the Act. Id. at 1352-53.