ELR Citation: ELR 21274
No(s). s. 91-55383 et al (9th Cir. Jul 1, 1992)

The court holds that although Congress amended the Clean Air Act in 1990, the U.S. Environmental Protection Agency (EPA), which disapproved California's ozone and carbon monoxide (CO) state implementation plans (SIPs) in 1988, is still obligated to promulgate ozone and CO federal implementation plans (FIPs) for California's South Coast Air Basin (SCAB) under Clean Air Act §110(c)(1)(B). At the time EPA disapproved the SCAB's SIPs, the Clean Air Act required the Agency to promulgate FIPs within two years of disapproving any SIP, which was by January 1990. The court's decision thus reverses the district court's dismissal of the settlement agreement between EPA and environmental groups, which required EPA to perform its statutory duty and promulgate FIP's for the SCAB on an expeditious schedule, and remands to the district court for reinstatement of the agreement and establishment of an expeditious schedule for EPA to promulgate FIP's for the SCAB.

The court first holds that the time referred to by the word "shall" in Clean Air Act §110(c)(1), which obligates EPA to promulgate FIPs upon disapproving any SIP, is two years from any of the triggering events listed in the provision, not two years from enactment of the 1990 amendments. The court holds that although Congress used the present tense word"disapproves," this does not preclude application of the two-year FIP requirement to EPA's 1988 disapproval of the SCAB's SIPs, because Congress did not intend to limit §110(c)(1)(B)'s reach to either past or future disapprovals. Moreover, the fact that Congress in 1990 chose to repeal §110 (c)(1) and replace it with a clearer version does not alter EPA's pre-1990 obligations, since the new section contains the same triggering events.

The court next holds that no conflict exists that would preclude EPA from promulgating FIPs containing criteria required in the amended Clean Air Act, even though California has not had an opportunity to address them in promulgating SIPs. Although the 1990 amendments extend the deadlines for attainment of ozone and CO standards for the SCAB until 2010 and 2000, respectively, EPA's proposed FIP's, ostensibly promulgated under the requirements of the pre-1990 Clean Air Act, provide for attainment of the ozone and CO standards on the exact same schedule. Thus, requiring EPA to fulfill its FIP obligation for the SCAB will not deny the region any extra time it would be entitled to under the terms of the 1990 amendments. Also, the new measures in the 1990 amendments for controlling nitrogen oxides and volatile organic compounds do not pose an impediment to EPA ability to meet its FIP obligations, because California may propose these new measures as revisions to EPA's proposed FIPs under the timetables provided in the 1990 amendments, just as the state would be required to do if a FIP had been in effect when the 1990 amendments were adopted. Moreover, although the 1990 amendments may allow EPA to approve some parts of the ozone SIP that it disapproved in 1988, based on new control techniques or improved existing techniques, EPA has authority under §110(c)(1) to approve a SIP that meets the requirements of the Act at any time before actual promulgation of a FIP. The court also holds that it is unnecessary to resort to the legislative history of the Clean Air Act Amendments of 1990 to determine whether Congress intended to relieve EPA of its obligation to promulgate FIPs for the SCAB, because the language of the amendments is clear. Also, EPA is not entitled to deference on its interpretation of §110(c)(1), because its current interpretation directly conflicts with the interpretation the Agency presented Congress. Finally, the court holds that the district court erred in denying attorney fees to the environmental groups for their work opposing EPA's motion to vacate the settlement and to limit the fees for preparing the fee motion. However, the court holds that the district court properly denied attorney fees for the groups' opposition to EPA's motion to extend the deadlines under the settlement agreement for the Agency's proposed and final FIPs, and for opposing an electric utility's motion to intervene as a plaintiff.

A dissenting judge would hold that the district court properly dismissed the environmental groups' suit, because the language of §110(c)(1) reveals Congress' intent that EPA's obligations are prospective from the date of the 1990 amendments, and because Congress was acutely aware of the air pollution problems of the SCAB, but chose to legislate a path of slow progress toward air quality attainment.

[The district court opinion in this litigation is published at 21 ELR 20665.]

Counsel for Plaintiffs-Intervenors
Colin Leonard
Morrison & Foerster
333 S. Grand Ave., Los Angeles CA 90071
(213) 626-3800

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

Norris, J. (before Goodwin and Noonan, JJ.):