Urban Air Quality Litigation Under the Clean Air Act: Past, Present, and Future

David S. Baron

Editors' Summary: The Clean Air Act requires the states and EPA to aggressively attack the problem of air pollution in the nation's cities. The Act's 1977 Amendments directed states to adopt and implement plans, including transportation controls and other measures, to ensure attainment of health standards by 1982 (or in some cases 1987). Despite the statutory mandate, many states have failed to adopt adequate plans, and others have failed to implement the plans that have been adopted. With dozens of cities still in nonattainment, citizens groups are increasingly asking the courts to impose sanctions on delinquent areas, to order implementation of adopted plans, and to force EPA to impose federal controls to ensure attainment. This Article describes the legal framework for urban air quality litigation under the Act and analyzes the issues presented in these cases.

David S. Baron is Assistant Director, Arizona Center for Law in the Public Interest, J.D. Cornell Law School, 1977; B.A. Johns Hopkins University, 1974. The author acted as counsel for the plaintiffs in McCarthy v. Thomas and for the petitioners in Delaney v. EPA, cited in the text.

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With the passage of the Air Pollution Control Act¹ in 1955, Congress began its involvement in air pollution regulation. The statute, as expanded in 1963 by the Clean Air Act (the Act),² provided technical and financial assistance to states to define and address the problem of air pollution. When states failed to respond adequately to the incentive, Congress amended the Clean Air Act³ in 1970 to establish a joint federal-state program for air pollution control.

The Clean Air Act and Its Implementation

Under the 1970 Act, the United States Environmental Protection Agency (EPA) in 1971 established national ambient air quality standards (NAAQS) for carbon monoxide (CO), ozone, and particulate matter (PM) — the pollutants then of most concern in urban areas — at levels designed to protect the public health and welfare.⁴ The Act required each state to submit to EPA by early 1972 (or nine months after promulgation of a NAAQS) a state implementation plan (SIP) providing for attainment and maintenance of these standards.⁵ If the plan met the requirements specified in § 110 of the Act, EPA was to approve it within four months of submission.⁶ Once approved, the plan became federally enforceable by both EPA and citizens.⁷

States were to attain the standard within three years of EPA approval, but they could be granted a two-year reprieve under specified circumstances.⁸ If a state failed to submit a SIP or submitted an inadequate one, § 110(c) directed EPA to promulgate a federal implementation plan (FIP) within six months to substitute for the missing state plan or the inadequate portions of the one submitted.⁹ Section 110(c) also required EPA to promulgate a FIP whenever the state failed to submit a revision within 60 days after EPA notification of SIP inadequacy or within "such longer period" as EPA might prescribe.¹⁰

After persistent violations of the ozone and CO NAAQS, Congress amended the Act in 1977¹¹ to provide for new deadlines and more stringent requirements to ensure attainment. The amendments directed EPA to identify areas within each state not meeting the NAAQS. These areas were to be designated "nonattainment" for each pollutant exceeding the standards.¹² In 1978, EPA identified [20 ELR 10217] dozens of cities as nonattainment areas. Many of these designations are still in effect.¹³

The 1977 amendments required the states to revise their SIPs by January 1, 1979, to meet the extensive requirements of new Part D and new § 110(a)(2)(I). Under Part D, each revision was to provide for attainment of standards in each nonattainment area "as expeditiously as practicable," but in the case of health-based (primary) standards "not later than December 31, 1982."¹⁴ Part D also required that states inventory all emissions of violating pollutants, provide for "reasonable further progress," and promise the implementation of "all reasonably available control measures [RACM] as expeditiously as practicable."¹⁵ Where motor vehicles contributed significantly to the problem, states had to include in their revisions transportation control measures (TCMs) to reduce traffic and cut emissions from each vehicle.¹⁶ Listed in § 108(f)(1)(A) of the Act, TCMs presumed to be reasonably available included programs for automobile emissions inspection and maintenance, improved public transit, exclusive bus and car-pool lanes, parking controls, bikeways and pedestrian zones, staggered work hours, and trip reduction programs.¹⁷

Part D also required states to adopt SIP provisions in such a manner as to be legally enforceable and to include commitments of money and staff necessary for implementation.¹⁸ Just as it had been required to promulgate FIPs to correct initial SIP deficiencies, EPA was required to do so for Part D plans.¹⁹ In addition, states without adequate plans were subject to termination of federal highway assistance and a ban on construction of new major sources of the violating pollutant.²⁰ The Act also provided for a construction ban and termination of air grants in areas failing to implement SIPs.²¹

For CO and ozone nonattainment areas, Part D made limited allowances for extensions of the 1982 attainment deadline to December 31, 1987.²² If the state demonstrated in its 1979 plan that RACM would not bring about attainment by the end of 1982, EPA could grant extensions to December 31, 1987.²³ Extension areas had to submit an additional SIP revision by July 1, 1982, providing any further measures necessary to ensure attainment by the "most expeditious date possible," including "[c]omprehensive public transportation measures to meet basic transportation needs."²⁴

The Post-1977 Experience

State and local governments quickly fell behind the schedules set by Congress in the 1977 amendments. Most states failed to submit their 1979 SIP revisions on time, and many others submitted plans that were inadequate to ensure attainment.²⁵ Despite these widespread failures, EPA avoided promulgating FIPs and imposing sanctions by delaying plan disapprovals and offering states additional time to correct deficiencies. Although, in 1979, EPA had initially imposed the construction ban on areas that failed to submit timely revisions, the ban was subsequently lifted in many areas as a result of the Agency's "conditional approval" policy. Under that policy, SIPs with "minor" deficiencies were deemed approved on the condition that the deficiencies would be corrected.²⁶

As 1987 approached, EPA still had not given final approval or disapproval to the 1979 SIP revisions for many cities. For other urban areas, it was clear that previous plans either were not being implemented or were inadequate to attain the standards. Faced with the prospect of widespread noncompliance with the 1987 deadline, EPA proposed in November 1987 its "post-1987" policy. Drawing analogies to other planning periods under the 1970 Act, the policy proposed to give states several more years to again revise their SIPs, and three to five years thereafter to attain the standards.²⁷ As of this writing, EPA still has not taken final action on this policy.

The Resurgence of Citizen Suits

Citizen suits have always played a critical role in implementation and enforcement of the Act. During the 1970s and early 1980s, suits brought by the Natural Resources Defense Council (NRDC) and other citizens groups were instrumental in forcing EPA to disapprove inadequate SIPs and to promulgate FIPs in several cities.²⁸ In the early years after the enactment of the 1977 amendments, citizen suits also challenged EPA's conditional approval policy.²⁹ A brief lull in urban air quality litigation ensued, perhaps due to the ongoing expectation that the Act would again be amended. By the mid-1980s, as citizens grew impatient with EPA inaction, they returned to the courts. Citizen suits are now forcing the adoption of dramatic new control measures in some of the nation's largest urban areas.

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Issues in SIP Litigation

Attainment Deadlines

By 1982, many cities were so far behind in adopting control measures that attainment by the applicable deadlines was highly unlikely. When presented with a 1982 SIP revision for Los Angeles that did not demonstrate attainment of the CO and ozone standards by 1987, EPA simply approved the plan's control measures and deferred action on the plan as a whole. In response to a citizen's challenge to this action, the Court of Appeals for the Ninth Circuit in Abramowitz v. EPA³⁰ rejected EPA's approach and held that the Agency did not have the discretion "to ignore the statutory deadline."³¹ Emphasizing the central role of the attainment deadlines under the Act, the court ordered EPA to disapprove the Los Angeles plan, thereby setting the stage for the FIP litigation discussed below.

Because the Abramowitz court was addressing a pre-1987 plan approval, it did not address the question of how quickly states must attain once the 1987 deadline passed. In late 1988, EPA published a Federal Register notice³² outlining the following possible approaches to the Los Angeles issue: (1) require immediate attainment; (2) require attainment within five years of plan approval or FIP promulgation, based on an analogy to the deadline provisions of the original 1970 Clean Air Act; and (3) allow an extended period for attainment, perhaps 20 years or more, to be determined based on the progress achievable without causing "severe disruption."

EPA has yet to select an approach for Los Angeles, but its options have been dramatically limited by the recent Ninth Circuit decision in Delaney v. EPA.³³ In Delaney, citizens challenged EPA's 1988 approval of an Arizona CO SIP that did not provide for attainment until the end of 1991. EPA had granted the state an additional three years to attain based on an analogy to the three years allowed for attainment under the 1970 Clean Air Act. The court rejected EPA's reasoning, holding that the Act's 1982 and 1987 deadlines were "absolute" and left no leeway for further extensions by the Agency.³⁴ Once the deadlines have passed, said the court, states must attain standards "as soon as possible utilizing every available control measure."³⁵ Because Arizona had rejected several control measures that the state itself had identified as likely to advance the attainment date, EPA's approval of the plan was held to be invalid.³⁶ The Delaney court went on to note that the burden of proof was on the state to justify rejection of any of the specific TCMs listed in § 108 of the Act: the burden was not on the petitioners to show that an unadopted measure would advance the attainment date.³⁷

Because Delaney forecloses automatic extensions of three to five years — at least in Ninth Circuit states — the focus must now shift to whether the state is doing all it can to advance the attainment date. In the past, states have typically adopted the minimum control measures necessary to attain by a fixed deadline. Delaney ends this minimalist approach.

EPA Duty to Set Date Certain for SIP Revision

Many cities with 1982 attainment dates failed to meet the statutory deadline, and as 1987 approached, it became obvious that many extension areas would not meet the 1987 deadline either. Despite these failures, EPA refrained from requiring major SIP overhauls. Instead, the Agency issued "SIP call" letters notifying states of their SIPs' inadequacy and asking them to revise their plans.³⁸ These SIP calls often did not include deadlines or specific guidance on additional control strategies needed for revamping the SIPs.³⁹ This approach left many SIPs in limbo and made citizen enforcement efforts more difficult. Because the SIPs were technically still "approved," citizens arguably could not seek sanctions for planning failures.

In 1988, NRDC asked the U.S. District Court for the Southern District of New York to hold that EPA had a nondiscretionary duty to notify New York State that the CO and ozone SIPs for New York City were inadequate and had to be revised by a date certain.⁴⁰ NRDC argued that because New York City had not attained the standards by the end of 1987, the SIPs were by definition inadequate. By the time the issue reached the judge, EPA had notified the state of the need to revise the SIP, but had not set a firm date for submission of the revisions. The court therefore held that while EPA's action mooted NRDC's request for an order requiring notice to the state, the Agency was still under an obligation to set a date certain for the state to submit the SIP revisions.⁴¹

Although the district court did not address EPA's duty to issue a SIP call, EPA's actions suggest that it believes it has such a duty — at least with regard to cities that are still in nonattainment after 1987. As noted above, EPA issued a SIP call to New York before the court even reached the issue. The Agency has reacted similarly in other citizen suits. For example, in Conservation Law Foundation of New England v. Massachusetts,⁴² the plaintiffs asked the court to order EPA to make an ozone SIP call to Massachusetts. In response to the suit, EPA required a SIP revision from the state by September 1991.⁴³

These cases do not address how much time EPA can allow states to prepare SIP revisions. Because the Act allows only nine months after the promulgation of a NAAQS for states to submit original SIPs,⁴⁴ citizens groups may argue that nine months is the absolute deadline for SIP revisions as well. On the other hand, the Act grants [20 ELR 10219] EPA some discretion to fix a time for states to respond to a SIP call. The Ninth Circuit decision in Delaney suggests that courts may be reluctant to allow protracted revision schedules now that the attainment deadlines have passed.

If a state submits a revision that EPA deems inadequate, should the state be given another chance? A 1987 Ninth Circuit decision, Arizona v. Thomas,⁴⁵ stated that the state should not be given a second opportunity to respond to a SIP call. The court held that because Arizona had "failed in its obligation to produce or make reasonable efforts to produce SIPs which would appear to meet the requirements of the Act," the state "should not be given another opportunity to produce more plans."⁴⁶ Although the case involved a challenge to EPA's disapproval of a SIP that had been conditionally approved, the holding may have broader implications.

Duty to Promulgate FIPs

The Act's provisions requiring EPA to promulgate FIPs where states have failed to adopt adequate SIPs are among the most clear-cut in the law. For this reason, citizen-plaintiffs are increasingly asking the courts to order FIP promulgation by EPA in nonattainment areas.

Mandatory Nature of Duty

Under § 110(c)(1) EPA "shall" promulgate a FIP if the state fails to submit a SIP, if EPA disapproves all or part of the submission,⁴⁷ or if the state fails to timely revise the SIP in response to a SIP call.⁴⁸ The courts have uniformly held that FIP promulgation is mandatory when any of these conditions have been met, regardless of the technical difficulties or resource limitations involved. For example, in Arizona, following EPA's disapproval of the SIPs, plaintiffs in McCarthy v. Thomas⁴⁹ obtained a court order requiring EPA to promulgate CO FIPs for Phoenix and Tucson despite EPA claims of administrative and political difficulties.⁵⁰ Citing resistence that the Agency encountered in promulgating FIPs during the 1970s, EPA asserted that federal plan promulgation should be required only as "a last resort." Finding the statute "clear and unambiguous on its face,"⁵¹ the court rejected these arguments.

Similarly, a federal district court in Wisconsin v. Thomas⁵² ordered promulgation of a federal ozone plan for the Chicago area. At the time of the decision, EPA had already disapproved the relevant SIPs and had conceded its duty to promulgate a FIP. Nonetheless, the Agency argued that it should not be ordered to promulgate a FIP. The court found that the history of planning delays in the Chicago area warranted injunctive relief.⁵³

Schedule for FIP Promulgation

Section 110(c) requires EPA to promulgate a FIP within six months of disapproving a SIP submittal or of a state's failure to meet a SIP submittal deadline. Where a FIP contains measures for which the Act requires consultation with local governments (e.g., transportation controls and air quality maintenance plan requirements, as specified in § 121), an additional two months may be allowed.⁵⁴ In McCarthy and Wisconsin, EPA asked for six months beyond the eight (i.e., a total of 14) under § 307(d)(1) of the Act. However, the legislative history of the Act indicates that Congress did not intend this additional six months to be available where EPA was already being allowed eight months under § 110(c).⁵⁵ In McCarthy, EPA sought a 14-month promulgation period for the Arizona SIP on the basis that more time was needed to do an adequate job. The district court held that the Act allows only eight months and that only true impossibility would justify an extension of the statutory deadline.⁵⁶ In Wisconsin, the district court allowed a 14-month promulgation period for the Chicago area FIP based on a stipulation of the parties. The court did not address whether the Act required or allowed such a timeframe.⁵⁷

Recent Settlements

In the past three years, clean air advocates in California have filed citizen suits seeking court-ordered FIP promulgation and other remedies for five separate nonattainment areas. The FIP issues in two of these cases, one involving Kern and Fresno Counties and the other involving San Francisco, remain unresolved.⁵⁸ In three others, however, settlements providing for FIP promulgation have been reached. For Los Angeles, EPA has agreed to promulgate CO and ozone FIPs by 1991.⁵⁹ In a citizen suit over the plan for Sacramento, EPA has stipulated to FIP proposal by mid-1991, and FIP promulgation by the spring of 1992.⁶⁰ And in another citizen suit, EPA has recently stipulated to proposal of a FIP for Ventura County (a coastal area just northwest of Los Angeles) by September 1990, [20 ELR 10220] and final FIP promulgation by July 1991.⁶¹ Under all of these settlements, EPA will be relieved of its FIP promulgation duty if the state submits an approvable plan before the FIP promulgation deadline. In addition, EPA has reserved the right to seek nullification of all or part of each settlement based on any Clean Air Act amendments that might be passed.

Maintenance

What "maintenance" means is another issue. The Act requires that SIPs provide not only for attainment of clean air standards, but also for maintenance of clean air.⁶² EPA has taken the position in its post-1987 policy that it will approve SIP revisions as long as they provide that it will approve SIP revisions as long as they provide for maintenance for at least 10 years after submittal of the revision.⁶³ In Delaney, the Ninth Circuit upheld an EPA finding that a 10-year maintenance demonstration was sufficient for the Phoenix area.⁶⁴ The petitioners argued that EPA rules adopted in the 1970s required a 20-year demonstration,⁶⁵ but the court held that the rules allowed EPA to reduce the period to 10 years if longer projections would be unreliable.⁶⁶

Failure of States to Implement SIP Commitments

In addition to seeking adoption of tougher plans, citizens groups are pressing for enforcement of commitments made by state and local governments in SIPs and SIP revisions that have already been approved. The Act's citizen suit provision allows citizens to seek judicial enforcement of any "emission standard or limitation" under the Act, a term that is defined in the Act to include a wide variety of SIP provisions and commitments.⁶⁷

Enforceability of SIP Commitments

In several recent cases, citizens groups have successfully enforced broadly phrased state commitments to adopt regulatory programs despite state objections that the commitments were too vague to be enforceable. In New Jersey, advocacy groups obtained a sweeping court order in American Lung Association of New Jersey v. Kean⁶⁸ requiring the state to adopt emission control regulations for seven major categories of sources, including gas stations, barge loading of gasoline, solvent-based consumer products, and various manufacturing operations. Although the SIP provided for these programs, the state argued that the SIP implementation schedules were by their terms only "projected" and were never meant to be binding. Holding that "a state cannot use its SIP to write around the mandatory requirements imposed by the Act," the court rejected the contention.⁶⁹ Because the Act requires that SIP provisions be legally enforceable, the court held that it would not "read ambiguity into the document to make it say less than the law requires."⁷⁰

In Atlantic Terminal Urban Area Renewal Coalition v. New York City Department of Environmental Protection,⁷¹ the District Court for the Southern District of New York found to be enforceable a SIP commitment by New York City to assure that unspecified air pollution mitigating measures would be implemented in connection with urban renewal projects. Finding that it constituted "a commitment on the part of the City to act," the court rejected the City's arguments that the SIP provision was merely an unenforceable goal.⁷²

Environmental groups in San Francisco recently obtained a court order requiring implementation of SIP commitments by local agencies to set emission limits on a wide range of volatile organic compound (VOC) sources and to develop new transportation control measures to assure steady progress toward attainment.⁷³

On the other hand, a district court in Philadelphia recently refused to order Pennsylvania to implement auto emissions testing programs in several counties, even though the Act required the SIP to provide for such programs.⁷⁴ The state had never included the testing requirement in its SIPs for the counties, and the court held that the plaintiffs were raising a challenge to the adequacy of the SIP — a challenge that could only be brought by a petition for review in the circuit court within 60 days of EPA's approval of the SIP.⁷⁵ The plaintiffs argued that the testing requirement should be deemed "in effect" within the meaning of § 304(f) because it was expressly required under § 172(b)(11)(B) and that formal inclusion in the SIP was not necessary to make it enforceable.⁷⁶

Strict Liability for Compliance

Citizens groups have generally been successful in enforcing SIP commitments despite state claims that compliance would be economically or technically infeasible. In NRDC v. New York State Department of Environmental Conservation,⁷⁷ the District Court for the Southern District of New York ordered New York to adopt an extensive set of rules governing VOC emissions based on SIP commitments similar to those in New Jersey. The court expressly rejected a state request to demonstrate the infeasibility of compliance. Holding that the Act imposed strict liability for compliance with the SIP, the court insisted that the state's [20 ELR 10221] only remedy would be to seek EPA approval of SIP modifications. The District Court of New Jersey reached the same conclusion in American Lung.⁷⁸

Court-Ordered Compliance Schedules

Court-ordered compliance schedules in the New York and New Jersey cases indicate what courts expect of states that have failed to meet SIP commitments. To arrive at a compliance schedule, courts will generally ask the parties for proposals and choose the earliest achievable dates. The court in American Lung found that the state's duty to comply with the SIP is not contingent on continued violation of the ambient air quality standard,⁷⁹ and that the schedule should provide for SIP implementation "as expeditiously as practicable."⁸⁰ In NRDC, the court noted that an order must incorporate final compliance dates.⁸¹ Furthermore, stressing that the SIP constituted federal law, the court asserted that a federal court could order the bypassing of usual state administrative procedures to assure timely compliance,⁸² and that inconvenience and expense do not justify a more protracted compliance schedule.⁸³

Sanctions

Highway Fund Cutoff

In urban nonattainment areas where transportation controls are needed to attain the standard, EPA must initiate a cutoff of federal highway assistance where the Agency "finds" that the state has not submitted an adequate Part D plan "or that reasonable efforts toward submitting such an implementation plan are not being made."⁸⁴ EPA takes the position that these requirements must be read conjunctively, and that a funding cutoff is mandated only if the Agency finds both that a state plan is inadequate and that the state is not making reasonable efforts to correct the deficiencies.⁸⁵ Because EPA almost never finds a lack of reasonable efforts, it rarely invokes the highway funding cutoff.

Courts have reached different conclusions in construing this provision. The court in McCarthy⁸⁶ upheld EPA's reading of the statute. There, EPA had disapproved the Arizona SIP but had not made a finding of lack of reasonable efforts. The court found the statute and legislative history ambiguous on whether this would mandate a fund cutoff, and therefore deferred to the Agency interpretation. A Tenth Circuit opinion suggests the opposite result. In upholding an EPA-ordered highway fund cutoff in New Mexico, the court expressly noted that the statute was written in the disjunctive, and that "either" a finding of lack of reasonable efforts or a plan disapproval would trigger the sanction.⁸⁷ In a Pennsylvania case, a district judge imposed the highway fund cutoff as a sanction for the state's noncompliance with a consent decree entered into with a citizens group.⁸⁸ Drawing from the § 176(a) sanction provision, the court imposed the fund cutoff as a contempt sanction, but did not address whether a cutoff was mandated by the statue.⁸⁹

Construction Ban

EPA has long held that the construction ban on new major sources of pollution takes effect automatically whenever EPA disapproves a SIP. Accordingly, citizens groups seeking imposition of the construction ban have generally sought to force EPA disapproval of the SIP. The construction ban must also be imposed where a state is failing to implement its SIP.⁹⁰ On this basis, clean air advocates in San Francisco are currently seeking imposition of the construction ban.⁹¹

Outlook for the Future

As of this writing, Congress is once again considering amendments to the Clean Air Act. All of the pending bills would set new attainment deadlines, with extensions generally ranging from 5 to 20 years depending on the severity of the problem.⁹² States would be required to revise their SIPs over the next several years to provide for attainment by the new deadlines, but the bills vary widely on the minimum requirements for such revisions.

The bills also differ significantly on sanctions. Proposals initially offered by Senator Max Baucus (D-Mont.) and Representative Henry Waxman (D-Cal.) provide for sanctions similar to those under the current law, except that they would become automatic upon the state's failure to meet planning or implementation schedules; EPA is left with little or no discretion for leniency. Administration proposals, on the other hand, give EPA broad discretion in imposing sanctions, including FIPs. All of the bills would require continued compliance with existing SIP provisions, at least until revisions are approved. However, the administration's bill would specifically nullify existing court orders for promulgation of FIPs.

Although the proposed amendments would have a major impact on future SIP litigation, none of the current proposals would alter the basic balance of federal/state relations under the Act or the role of the courts in supervising its administration. Given the historic unwillingness of the states to adopt the serious measures needed to bring about attainment and EPA's reluctance to intervene, citizen suits will continue to play a pivotal role in the battle for clean air.

1. Pub. L. No. 84-159, 69 Stat. 322 (1955).

2. Pub. L. No. 88-206, 77 Stat. 392 (1963).

3. Pub. L. No. 91-604, 84 Stat. 1676 (1970).

4. 36 Fed. Reg. 22384 (1971) (codified as amended at 40 C.F.R. pt. 50).

5. CAA § 110(a)(1), 42 U.S.C. § 7410(a)(1), ELR STAT. CAA 008.

6. Id. § 110(a)(2), (a)(3)(A), § 7410(a)(2), (a)(3)(A), ELR STAT. CAA 008-011.

7. Id. §§ 113, 304(a),(f), §§ 7413, 7604(a),(f), ELR STAT. CAA 014, 044.

8. Id. § 110(a)(2)(A),(C), § 7410(a)(2)(A),(e),ELR STAT. CAA 008-011.

9. Id. § 110(c)(1)(A)-(B), § 7410(c)(1)(A)-(B), ELR STAT. CAA 009.

10. Id. § 110(c)(1)(C), § 7410(c)(1)(C), ELR STAT. CAA 009.

11. Pub. L. No. 95-95, 91 Stat. 685 (1977).

12. CAA §§ 107(d), 171(2), 42 U.S.C. §§ 7407(d), 7501(2), ELR STAT. CAA 006, 029.

13. 43 Fed. Reg. 8962 (1978); 40 C.F.R. pt. 81 (1988).

14. CAA § 172(a), 42 U.S.C. § 7502(a), ELR STAT. CAA 029; Pub. L. No. 95-95, § 129(c) (1977).

15. CAA 172(b), 42 U.S.C. § 7502(b), ELR STAT. CAA 029.

16. Id. § 110(a)(2)(B), § 7410(a)(2)(B), ELR STAT. CAA 008; 44 Fed. Reg. 20372, 20375, 20377 (1979); 43 Fed. Reg. 21673, 21676-77 (1978).

17. CAA § 108(f)(1)(A), 42 U.S.C. § 7408(f)(1)(A), ELR STAT. CAA 008; 44 Fed. Reg. 20372, 20377 (1979); 43 Fed. Reg. 21673, 21676-77 (1978).

18. CAA § 172(b)(7), (10), 42 U.S.C.§ 7502(b)(7), (10), ELR STAT. CAA 029.

19. Id. § 172(b)(1), 42 U.S.C. § 7502(b)(1), ELR STAT. CAA 029.

20. Id. §§ 176(a), 110(a)(2)(I), 42 U.S.C. §§ 7506(a), 7410(a)(2)(I), ELR STAT. CAA 030, 008. The Act also allows EPA to terminate sewage treatment construction grants to areas lacking approved SIPs — a purely discretionary sanction. Id. § 7616. The construction ban under § 110(a)(2)(I) is mandatory, while courts have split on the mandatory nature of the highway fund cutoff. See text accompanying infra notes 88-90.

21. §§ 173(4), 176(b), 42 U.S.C. §§ 7503(4), 7506(b), ELR STAT. CAA 030.

22. Id. § 172(a)(2), 42 U.S.C. § 7502(a)(2), ELR STAT. CAA 029.

23. Id.

24. Id. § 172(c), 42 U.S.C. § 7502(c), ELR STAT. CAA 029; Pub. L. No. 95-95, § 129(c) (1977) (reprinted as note to § 7502); 46 Fed. Reg. 7185-86 (1981).

25. See Reed, Marking Time: A Status Report on the Clean Air Act Between Deadlines, 15 ELR 10022, 10026 (Feb. 1985).

26. See id. at 10026. For cases upholding the use of conditional approvals, see Connecticut Fund for the Env't v. EPA, 672 F.2d 998 (2d Cir. 1982); City of Seabrook v. United States EPA, 659 F.2d 1349 (5th Cir. 1981). Both of these cases restricted use of the policy to cases in which deficiencies would not interfere with timely attainment, and the Second Circuit held that a conditional approval would not justify a lifting of the construction ban.

27. 52 Fed. Reg. 40544 (1987).

28. See, e.g., NRDC v. EPA, 425 F.2d 968 (D.C. Cir. 1973); see also Citizens for a Better Env't v. Costle, 515 F. Supp. 264 (N.D. Ill. 1981).

29. See, e.g., Connecticut Fund for the Env't v. EPA, 672 F.2d 998 (2d Cir. 1982).

30. 832 F.2d 1071 (9th Cir. 1987).

31. Id. at 1079.

32. 53 Fed. Reg. 49494 (1988).

33. No. 88-7368, 20 ELR 20460 (9th Cir. Mar. 1, 1990) (slip op.).

34. Id., slip op. at 2269.

35. Id., slip op. at 2270.

36. Id., slip op. at 2270-72.

37. Id., slip op. at 2271.

38. The letters were issued pursuant to CAA § 110(a)(2)(H), 42 U.S.C. § 7410(a)(2)(H), ELR STAT. CAA 008.

39. See, e.g., cases discussed at infra notes 40-43 and accompanying text.

40. NRDC v. New York State Dep't of Envtl. Conser., 700 F. Supp. 173 (S.D.N.Y. 1988).

41. Id. at 177, 181.

42. No. 87-0651-WD (D. Mass. filed Mar. 1987).

43. Telephone conversation with Janet McGowan, counsel for Conservation Law Foundation in Boston (Nov. 3, 1989). See also Delaware Valley Citizens Council for Clean Air v. Davis, No. 89-2592 (E.D. Pa. Apr. 11, 1989) where citizens are asking that EPA be ordered to make an ozone SIP call for Pennsylvania.

44. CAA § 110(a)(1), 42 U.S.C. § 7410(a)(1), ELR STAT. CAA 008.

45. 829 F.2d 834 (9th Cir. 1987).

46. Id. at 839.

47. Citizens for a Better Env't v. Costle, 610 F. Supp. 106 (N.D. Ill. 1985) (holding the duty is not stayed by a challenge to the legality of the SIP disapproval).

48. NRDC v. New York State Dep't of Envtl. Conser., 700 F. Supp. 173, 181-82 (S.D.N.Y. 1988) (holding FIP promulgation duty does not arise from EPA delay in making a SIP call as long as delay is not unreasonable).

49. 17 ELR 21214 (D. Ariz. 1987).

50. Id.

51. Id. at 21216. EPA subsequently proposed a FIP requiring employer trip reduction programs and wintertime use of oxygenated fuels. 53 Fed. Reg. 17378 (1988). In response, the state adopted similar requirements, which EPA approved in lieu of a FIP. 53 Fed. Reg. 30220, 30224 (1988).

52. 19 ELR 20964 (E.D. Wis. 1989).

53. Id. at 20964.

54. CAA §§ 110(c)(1), 121, 42 U.S.C. §§ 7410(c)(1), 7421, ELR STAT. CAA 008, 020. Where there have already been opportunities for consultation — as where a SIP revision has been pending for several years — plaintiffs might argue that the provision allowing two additional months for consultation is simply not relevant.

55. H. REP. NO. 294, 95th Cong., 1st Sess. 315, reprinted in 1977 U.S. CODE CONG. & ADMIN. NEWS 1077, 1394 (1977).

56. 18 ELR at 21026.

57. 19 ELR at 20964.

58. Citizens for a Healthy Env't v. EPA, No. CVF-89-399 REC (E.D. Cal. filed June 2, 1989) (seeking promulgation of a FIP for Kern and Fresno Counties); Citizens for a Better Env't v. Deukmejian, No. C89-2044 TEH (N.D. Cal. filed June 13, 1989) (seeking FIP promulgation, sanctions, and SIP implementation in the San Francisco area).

59. Coalition for Clean Air v. EPA, No. CV88-4414 HLH (C.D. Cal. Feb. 22, 1988).

60. Environmental Council of Sacramento v. EPA, No. CIVS-87-0420 EJG (E.D. Cal. Mar. 17, 1987).

61. Citizens to Preserve the Ojai v. EPA, No. CV88-00982 HLH (C.D. Cal. Feb. 24, 1988).

62. CAA §§ 110(a)(1), 172(a)(1), 42 U.S.C. §§ 7410(a)(1), 7502(a)(1), ELR STAT. CAA 008, 029.

63. See 52 Fed. Reg. 45045, 45080 (1987).

64. 20 ELR 20460, slip op. at 2275-76.

65. 40 C.F.R. § 51.42 (1988).

66. 20 ELR 20460, slip op. at 2276. Under pending legislation, S. 1630, a 20-year demonstration would be mandatory.

67. 42 U.S.C. § 7604(a)(1), (f)(3).

68. 670 F. Supp. 1285, 18 ELR 20036 (D.N.J. 1987), aff'd, 871 F.2d 319, 19 ELR 20759 (3d Cir. 1989).

69. Id. at 1291.

70. Id.

71. 697 F. Supp. 157 (S.D.N.Y. 1988).

72. Id. at 162. But see Wilder v. Thomas, 659 F. Supp. 1500, 1506 (S.D.N.Y. 1987), aff'd, 854 F.2d 605 (2d Cir. 1988) (holding that a SIP commitment simply to attain the standard was not enforceable).

73. Citizens for a Better Env't v. Deukmejian, No. C89-2044 TEH (N.D. Cal., filed June 13, 1989).

74. Delaware Valley Citizens Council for Clean Air v. Davis, No. 89-2592 (E.D. Pa., order dated Feb. 21, 1990).

75. 42 U.S.C. § 7607(b)(1).

76. Telephone conversation with plaintiffs' counsel, Jerome Balter, of the Public Interest Law Center of Philadelphia (Mar. 7, 1990).

78. 18 ELR 20317 (D.N.J. 1987); see also Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir. 1977).

79. American Lung, 18 ELR at 20317.

80. Id.

81. NRDC, 668 F. Supp. at 855.

82. Id.

83. Id.

84. CAA § 176(a), 42 U.S.C. § 7506(a), ELR STAT. CAA 030.

85. See 45 Fed. Reg. 24692, 24695 (1980).

86. 17 ELR at 21214-16.

87. New Mexico Envtl. Improvement Div. v. Thomas, 789 F.2d 825, 833 (10th Cir. 1986). EPA has argued that the quoted language is dictum because EPA had in fact made both of the relevant findings with respect to New Mexico.

88. Delaware Valley Citizens Council v. Commonwealth, 533 F. Supp. 869 (E.D. Pa. 1982).

89. Id. at 882-84.

90. CAA § 173(1)(B)(4), 42 U.S.C. § 7503(1)(B)(4), ELR STAT. CAA 030.

91. Citizens for a Better Env't v. Deukmejian, No. C89-2044 TEH (N.D. Cal. June 13, 1989).

92. See, e.g., H.R. 2323, 101st Cong., 1st Sess. (Waxman bill); H.R. 3030, 101st Cong., 1st Sess. (administration bill); S. 1630, 101st Cong., 1st Sess. (Baucus bill).