ELR Citation: ELR 20665
No(s). CV88-4414 (C.D. Cal. Jan 9, 1991)

The court holds that the enactment of the 1990 Clean Air Act amendments relieves the Environmental Protection Agency (EPA) of its duty to promulgate a federal implementation plan (FIP) for the South Coast Air Basin (SCAB) in southern California. Under the prior version of the Clean Air Act, EPA rejected California's state implementation plan (SIP) for the SCAB and agreed to prepare a FIP. However, after EPA issued its proposed FIP, Congress passed the 1990 amendments. The amendments preserve the requirement that EPA prepare a FIP if a state fails to prepare an acceptable SIP, but change the criteria and timing for SIP approval. The court holds that revised Clean Air Act §110, which gives EPA two years after SIP disapproval to issue a FIP, applies to the new SIP that California must submit under the new criteria and not to the one that was rejected in 1988. When Congress revamped the criteria and timing for SIPs and adopted a policy encouraging states to take the lead with a potential FIP as an incentive, it intended to allow California the chance to develop its own plan under the new criteria and schedules. The court also holds that the savings clause in §193 of the amendments, which precludes modification of "control requirements" in effect before the 1990 amendments unless the modification ensures equivalent or greater emission reductions, does not apply. The requirement that EPA issue a FIP is not a "control requirement" because there is no present specification of the details of emission control.

Counsel for Plaintiffs
Alan Waltner
Gorman & Waltner
1419 Broadway Ave., Ste. 419, Oakland CA 94612
(415) 465-4494

Counsel for Defendants
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000