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Delaware Valley Citizens Council for Clean Air v. Davis

filed: May 6, 1991.

DELAWARE VALLEY CITIZENS COUNCIL FOR CLEAN AIR, DELAWARE VALLEY TOXICS COALITION, SIERRA CLUB, PENNSYLVANIA CHAPTER, PENNSYLVANIA FEDERATION OF SPORTSMENS CLUBS, BICYCLE COALITION OF THE DELAWARE VALLEY, GIRARD ESTATE AREA CIVIC ASSOCIATION, TOLENTINE COMMUNITY CENTER AND DEVELOPMENT ORGANIZATION, THOMAS G. MCFARLAND AND CHARLES E. ROLAN
v.
ARTHUR A. DAVIS, INDIVIDUALLY, AND ARTHUR A. DAVIS, AS SECRETARY, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES, HOWARD YERUSALIM, AS SECRETARY, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ROBERT P. CASEY, AS GOVERNOR, COMMONWEALTH OF PENNSYLVANIA, THE COMMONWEALTH OF PENNSYLVANIA, WILLIAM K. REILLY, AS ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, STANLEY L. LASKOWSKI, AS ACTING DIRECTOR, U.S. ENVIRONMENTAL PROTECTION AGENCY REGION III, SAMUEL SKINNER, AS SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION, HOWARD YERUSALIM, INDIVIDUALLY AND AS SECRETARY, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ROBERT P. CASEY, INDIVIDUALLY, AND AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, DELAWARE VALLEY CITIZENS COUNCIL FOR CLEAN AIR, DELAWARE VALLEY TOXICS COALITION, SIERRA CLUB, PENNSYLVANIA CHAPTER, PENNSYLVANIA FEDERATION OF SPORTSMENS CLUBS, BICYCLE COALITION OF THE DELAWARE VALLEY, GIRARD ESTATE AREA CIVIC ASSOCIATION, TOLENTINE COMMUNITY CENTER AND DEVELOPMENT ORGANIZATION, THOMAS G. MCFARLAND AND CHARLES E. ROLAN, APPELLANTS IN NO. 90-1309, WILLIAM K. REILLY, AS ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, STANLEY L. LASKOWSKI, AS ACTING DIRECTOR, U.S. ENVIRONMENTAL PROTECTION AGENCY REGION III, AND SAMUEL SKINNER, AS SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION, APPELLANTS IN NO. 90-1410



Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil Action No. 89-02592.

Stapleton, Hutchinson and Garth, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge

I.

Delaware Valley Citizens Council, together with other public interest citizens and community groups and two individuals (collectively "the Citizens"),*fn1 appeal a final order of the United States District Court for the Eastern District of Pennsylvania. That order dismissed all of the Citizens' claims against appellee Commonwealth of Pennsylvania (Pennsylvania)*fn2 for violation of the Clean Air Act (Act), 42 U.S.C.A. §§ 7401-7642 (West 1983 & Supp. 1990), and its EPA-approved State Implementation Plan (Plan), as supplemented. The Citizens appeal was docketed here at No. 90-1309. At No. 90-1410, the United States Environmental Protection Agency (EPA)*fn3 also filed an appeal, limited to that portion of the district court's order that dismissed Count Two of the Citizens' complaint. In its appeal, the EPA asserts that a final decision dismissing Count Two is likely to work a collateral estoppel against it in Pennsylvania's related petition for review of an EPA order, 932 F.2d 269. That petition for review challenges the EPA's refusal of Pennsylvania's request to add a second supplement (Supplement Two) to the Plan. The proposed second supplement would relieve the state from implementing anti-pollution measures set out in an EPA-approved first supplement (Supplement One) to the Plan.

We consolidated the Citizens' appeal at No. 90-1309 and the EPA's appeal at No. 90-1410. We will separately decide the merits of Pennsylvania's petition for review of the EPA's refusal of the state's second supplement.

In the consolidated appeals, the Citizens filed a complaint joining various claims against Pennsylvania and the EPA. Three of the counts the Citizens asserted against Pennsylvania involved claims that the Plan did not contain all of the provisions required by the Act. The remaining count charged Pennsylvania with failing to implement its Plan. The Citizens brought all four claims under 42 U.S.C.A. § 7604, the citizens' suit provision of the Act.

The district court's order dismissing the Citizens' claims against Pennsylvania finally disposed of those claims. The district court certified that order as final for immediate appeal under Federal Rule of Civil Procedure 54(b).

Counts One, Three and Four of the Citizens' second amended complaint charged directly that the Plan Pennsylvania had submitted to the EPA for attaining the Act's clean air standard, as revised and approved by the EPA, failed to meet the Act's requirements. We will affirm that portion of the district court's order dismissing those three counts under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Section 7604 of the Act does not give the district court subject matter jurisdiction over the Citizens' private suit alleging that Pennsylvania's Plan failed to comply with the Act. Those claims fall under § 7607 of the Act. Section 7607 applies to suits that seek to compel the adoption of implementation plans that comply with the Act and requires that such suits be initiated as petitions for review in the courts of appeals. Because the Citizens refused to use the procedure that § 7607 requires to compel compliance with the Act, the district court properly dismissed Counts One, Three and Four. We will, however, reverse that portion of the district court's order that dismissed Count Two. In Count Two, the Citizens claim that Pennsylvania has violated the terms of the Plan by failing to take appropriate steps to decrease ozone emissions in the Philadelphia area before March 15, 1985. We cannot eliminate, as a matter of law, the possibility that the Plan, as modified by Supplement One, requires Pennsylvania to undertake additional measures to improve air quality in the Philadelphia metropolitan area. Accordingly, we will vacate that portion of the district court's order dismissing Count Two of the complaint and remand this case to the district court for further proceedings consistent with this opinion.

II.

The Clean Air Act is Congress's response to well-documented scientific and social concerns about the quality of the air that sustains life on earth and protects it from the harmful effects of the hard radiation permeating space beyond the limits of our atmosphere and from the degradation and pollution caused by modern industrial society. Any effort to control the quality of the air over a particular region must take into account many ever changing variables and involve even more fine value judgments about the means and effects of efforts to control and improve the air we breathe. Because of the indeterminate nature of the chaotic processes that affect air quality, and the complexities of the statistical measures used to approximate them, computation of the interactive effect of those variables and the efficacy of all the various means of control from time to time available are likely to generate argument within the scientific and technical community, to say nothing of the arguments from self-interest that the identification and implementation of appropriate pollution control measures are also sure to engender.

The arcane knowledge essential to resolve these disputes reasonably is foreign to non-experts, including judges. Accordingly, to insure, as far as possible, that the measures adopted from time to time to meet the desired end of improved air quality will be generated by reason and not just self-interest or arbitrary power, the statute gives the EPA primary responsibility for the setting of air standards and the means to effect them; but, perhaps in wisdom borne of occasional sad experience with sole reliance on expert bureaucracies to solve technical problems that impinge on the self-interest of powerful private and public groups, the statute also provides a means for publicly interested citizens to obtain judicial enforcement of the standards in the Act and to encourage the pursuit of means appropriate to attain those standards. Thus, on the one hand, § 7607 allows groups such as the Citizens to hold the EPA to the Act's general standards in formulating and approving implementation plans by permitting them to petition for review of those plans in the courts of appeals. On the other hand, § 7604 gives citizens the right to complain in the district courts about failures to act in accord with the terms of approved plans implementing either the Act's general standards or EPA's specific regulatory standards.

The Clean Air Act delegates to the EPA responsibility for setting national ambient air quality standards for certain air pollutants. See 42 U.S.C.A. § 7409. Within nine months of the promulgation of a standard, each state must submit to the EPA a plan explaining how the state expects to "implement[], maintain, and enforce[]" the standard within that state. Id. § 7410(a)(1). Each plan must include "emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance" of the standards. Id. § 7410(a)(2)(B). Each standard must be attained as expeditiously as possible. See id. §§ 7410(a)(2)(A), 7502(a).

The Clean Air Act Amendments of 1977 set forth a planning process for areas that were not attaining these standards. The 1977 amendments made December 31, 1982 the deadline for each state to attain existing standards. See id. § 7502(a)(1). The EPA, however, could extend the deadline for attainment of the ozone standard until no later than December 31, 1987 in states that could demonstrate they could not meet the 1982 deadline "despite the implementation of all reasonably available measures." Id. § 7502(a)(2). The 1977 amendments also required states to establish a specific schedule for implementing a vehicle emission inspection and maintenance program for areas that had not attained the ozone standard by 1982. See id. § 7502(b)(11)(B).

When the 1977 amendments were enacted, Pennsylvania had already submitted to the EPA a proposed plan for meeting the Act's ambient air standards. In 1979, Pennsylvania submitted revisions to that Plan. The revisions were designed to accommodate the 1977 amendments. As part of the revisions, the state requested and received an extension, until December 31, 1987, for the attainment of the ozone standard in three areas of the state, Allentown-Bethlehem-Easton, Philadelphia and Pittsburgh. The EPA approved these revisions with a condition; it ordered Pennsylvania to submit further revisions by July 1, 1982.

In the meantime, the EPA had set forth in a final policy statement the general terms that states would have to include in their 1982 plan revisions if those revisions were to gain EPA approval. Joint Appendix (Jt. App.) at 1-11*fn4 (reprinting State Implementation Plans: Approval of 1982 Ozone and Carbon Monoxide Plan Revisions for Areas Needing an Attainment Date Extension, 46 Fed. Reg. 7182-92 (1981)). The EPA's final policy statement said, among other things, that each state's revision had to (1) demonstrate attainment by 1987 and interim progress; (2) demonstrate attainment by the use of enforceable control measures; and (3) identify and adopt additional measures if the enforceable control measures do not show attainment by 1987.

Under the EPA's 1981 final policy statement and the condition the EPA attached to approval of the state's 1979 revisions, Pennsylvania submitted additional plan revisions in June of 1982. The 1982 revision predicted that a forty-four percent reduction in ozone-creating emissions would be required in the Philadelphia area if the ozone emissions standard were to be met. The 1982 revision also predicted that the measures Pennsylvania proposed would result in a 38.5 percent reduction of those emissions. From these premises, the revision predicted that the Philadelphia area would experience a shortfall of 5.5 percent in meeting the Act's ozone air quality standard. In early 1983, the EPA told Pennsylvania it would disapprove portions of the 1982 revision.

Pennsylvania sought to work things out with the EPA. On October 24, 1983, it submitted a supplemental plan revision, referred to by the parties as Supplement One. In this supplement, Pennsylvania appears to have committed itself to adopt and implement various additional emission control measures in order to meet, by 1987, the forty-four percent reduction in ozone emissions that the Plan predicted would be required to meet the EPA's standards. The EPA approved Supplement One and the 1982 Plan, as modified by Supplement One. In doing so, the EPA noted that Pennsylvania had set forth "several extraordinary emission reduction measures which will be used to eliminate the 5.5% shortfall . . . ." Approval of Revisions to the Pennsylvania State Implementation Plan, 50 Fed. Reg. 7772, 7774 (1985), reprinted in Jt. App. at 280B.

A.

Against this general background, we relate some of the details of the administrative proceedings involving Pennsylvania and the EPA that more immediately preceded this case.

Six months after Supplement One was approved, Pennsylvania submitted another proposed revision to its Plan, known as Supplement Two, concerning ozone producing emissions. Based on updated point source emission data, but not updated mobile or area source data, and based on subsequent reprojections, Pennsylvania reversed itself and now predicted that additional control measures would not be needed to attain the required forty-four percent emission reduction by 1987.*fn5 Four years later, and more than one year after the 1987 standard should have been attained, the EPA disapproved Supplement Two. The EPA said it disapproved Supplement Two because it could not be sure that the measures Pennsylvania had originally thought inadequate to meet the forty-four percent reduction were practically enforceable or, if enforceable, would maintain the ozone level at forty-four percent less than the initial measurements without using Supplement One's additional control measures.

One month later, Pennsylvania petitioned the EPA for reconsideration of its disapproval of Supplement Two. This time, Pennsylvania submitted actual 1987 data it said demonstrated attainment of a forty-four percent reduction in ozone in the Philadelphia area in 1987. The EPA denied the petition for reconsideration, primarily because Supplement Two did not demonstrate to the EPA's satisfaction that the forty-four percent reduction could be maintained and because Pennsylvania's use of new data on ozone reduction could not be accurately correlated with the earlier data predicting the emissions reductions needed to attain the standards. The EPA concluded that an accurate comparison required all the earlier data to be updated.

As noted, Pennsylvania filed a timely petition for review of the EPA's refusal to approve Pennsylvania's proposed Supplement Two with this Court and that petition, docketed at No. 90-3171, is ...


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