ELR Citation: ELR 20582
No(s). s. C89-2044 TEH, -2064 TEH (N.D. Cal. Aug 19, 1991)

The court, based on the reasonable further progress (RFP) benchmarks in the existing Clean Air Act state implementation plan (1982 Plan) for the San Francisco Bay Area, holds that the Metropolitan Transportation Commission (MTC) is in compliance with its contingency transportation plan with respect to ozone but not carbon monoxide (CO). In Citizens for a Better Environment v. Deukmejian (CBE I), 20 ELR 21047, the court found that RFP had not been achieved forozone and CO in the Bay Area and ordered the MTC to implement a contingency plan, part of which requires the MTC to adopt sufficient additional transportation control measures (TCMs) to bring the region back within the RFP line.

The court first holds that the RFP commitments in the 1982 Plan are in force until a new state implementation plan (SIP) is approved. This is consistent with the 1990 Clean Air Act amendments, which contain a savings clause holding agencies to their existing SIP obligations pending approval of new SIPs. The court also finds that the RFP commitments did not cease to exist after the 1987 statutory deadline. Courts have routinely enforced, and are in fact obliged to enforce, SIP provisions, including RFP commitments, despite the passage of their governing deadlines. The court refuses to treat the 1982 Plan as having been de facto amended by the new reduction requirements contained in the 1990 amendments. SIP modification and revision cannot be judicially effected. Technical questions also may arise and need to be resolved by the Environmental Protection Agency (EPA) during its SIP review and approval process. The court further concludes that holding the MTC to the existing SIP requirements while the new extended deadlines in the 1990 amendments serve as an outer limit is consistent with the statutory purpose of attaining healthy air as expeditiously as practicable.

The court declines to hold the MTC in civil contempt for failing to adopt sufficient control measures. The court's 1982 order is not sufficiently specific and definite to warrant a finding of contempt because the order was not defined with respect to either ozone or CO and can be interpreted in different ways. The court next holds that the record does not show that RFP has not been achieved for ozone. Because the updated data, which indicates a higher emissions level for hydrocarbons than those committed in the 1982 Plan, rests on different assumptions, models, and inventories than were used to develop the RFP line in the 1982 Plan and generates an entirely new set of projections concerning the pre-control levels, the court finds it inappropriate to compare the updated data to the 1982 Plan RFP requirements to show liability.

However, the court holds that the additional TCMs do not satisfy the MTC's obligations with respect to CO. Although the 1982 Plan does not contain a defined RFP graph for CO as it does for ozone, the court concludes that numerous provisions and data in the 1982 Plan and an EPA letter show the regional CO levels as a component of the RFP equation for CO. An analysis based on a 1991 California Inspection and Maintenance Factors report and the assumptions utilized in the 1982 Plan indicates that the additional TCMs do not satisfy the RFP benchmark for CO.

The court rejects using vehicle miles of travel (VMT) and vehicle trips (VT) as a benchmark for CO. Congress defines RFP in both the 1977 and 1990 Clean Air Act amendments in terms of emissions and not VMT and VT, and EPA never suggested VT and VMT as enforceable standards for CO RFP. Liability is also not established with respect to the RFP CO benchmarks for downtown San Jose and San Jose hot spot because, according to the assumptions of the 1982 Plan, RFP would be achieved for both areas by 1990. Lastly, the court orders the MTC to either identify additional TCMs or show why they are infeasible.

Counsel for Plaintiffs
William S. Curtiss
Sierra Club Legal Defense Fund
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Alan Waltner
Gorman & Waltner
1736 Franklin St., 8th Fl., Oakland CA 94612
(510) 465-4494

Counsel for Defendants
Daniel E. Lungren, Robert H. Connett, M.A. Jennings
Attorney General's Office
455 Golden Gate Ave., Rm. 6200, San Francisco CA 94102
(415) 703-1985

David D. Cooke, Robert D. Wyatt
Beveridge & Diamond
2 Embarcadero Ctr., Ste. 1705, San Francisco CA 94111
(415) 397-0100