ELR Citation: ELR 20448
No(s). s. C89-2044 TEH, -2064 TEH (N.D. Cal. Aug 28, 1990)

The court holds that the contingency plan in California's 1982 Clean Air Act state implementation plan (SIP) for the San Francisco Bay Area requires adoption of sufficient contingency measures to make reasonable further progress in reducing hydrocarbon emissions, and that state and local government defendants are liable for violating this commitment with respect to stationary sources. In a previous ruling, the court held that defendant state agencies were liable for failing to implement certain portions of the 1982 SIP and imposed a strict timetable that required corrective action as expeditiously as practicable. The court also held that defendants were not liable for violation of the contingency provisions for stationary sources. On plaintiffs' motion for reconsideration, the court holds that although the 1982 SIP may not require sufficient contingency measures to attain national ambient air quality standards (NAAQS), it does require sufficient contingency measures to make reasonable further progress. NAAQS cannot be enforced directly, and the SIP fails to link the contingency plan to NAAQS. However, enforcing the contingency plan would not cause the court to directly enforce NAAQS. Instead, the court would be enforcing contingency plans as a strategy for attaining NAAQS. Further, whether the air in the Bay Area satisfies the NAAQS at any given time is independent from the contingency plan's commitment to make reasonable further progress. The court next holds that defendants are liable for violating this commitment with respect to stationary sources. Regardless of how it is measured, the reasonable further progress the 1982 plan promised to make by 1987 has still not been achieved in 1990. The court orders defendants to achieve reasonable further progress by December 31, 1991. The court holds that reasonable further progress must be measured by the target reductions achieved and by the overall emissions levels. The court declines to revise its order requiring that the violations be remedied "as expeditiously as practicable" to require that the violations to be remedied "as soon as possible." The case law does not compel use of the "possible" standard, and the two standards are virtually interchangeable.

[A previous decision in this litigation is published at 20 ELR 21047.]

Counsel for Plaintiffs
Ephraim Margolin, Nicholas C. Arguimbau, Robert M. Teets Jr., Howard N. Ellman
Ellman, Burke, Hoffman & Johnson
One Ecker Bldg., Ste. 200, Ecker & Stevenson Sts., San Francisco CA 94105
(415) 777-2727

Counsel for Defendants
John K. Van de Kamp, Attorney General; Robert H. Connett, Ass't Attorney General
800 Tishman Bldg., 3580 Wilshire Blvd., Los Angeles CA 90010
(213) 736-2304

Charlotte Uram, Robert L. Hines
Landels, Ripley & Diamond
450 Pacific Ave., San Francisco CA 94133
(415) 788-5000

Robert D. Wyatt, David D. Cooke, Kimberly M. McMorrow
Brobeck, Phleger & Harrison
Spear St. Tower, One Market Plaza, San Francisco CA 94105
(415) 442-0900