Petition for Writ of Certiorari — Reilly v. Delaney

In the Supreme Court of the Bnited States

_OCTOBER TERM, 1990

WILLIAM K. REILLY, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL., PETITIONERS

V.

ROBERTA DELANEY, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

E. DONALD ELLIOTT Assistant to the Solicitor General

General Counsel MICHAEL A. MCCorD

ALAN ECKERT DAVID W. ZUGSCHWERDT

Associate General Counsel Altorneys

SARA SCHNEEBERG Department of Justice

Altorney Washington, D.C. 20530

Environmental Protection (202) 514-2217

Agency

Washington, D.C. 20460

ay

| BEST AVAILABLE COPY |

QUESTION PRESENTED

~

Whether the Clean Air Act authorizes a court of ap-

peals, in a proceeding reviewing agency action, to order

the Administrator of the Environmental Protection Agen-

cy to prepare a “federal implementation plan” within a

specified time period.

(I)

II

PARTIES TO THE PROCEEDINGS BELOW

The petitioners before the court of appeals were

Roberta Delaney, Gayle Hartmann, David Horley, Alama

Williams, Maureen Mageau-Decindis and Brian

McCarthy. The respondents before the court of appeals

were William K. Reilly, Administrator of the Environmen-

tal Protection Agency (EPA), and EPA. The State of

Arizona intervened in the court of appeals in support of

the Administrator and EPA.

TABLE OF CONTENTS

Page

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Statutory provisions involved ...................... 2

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Reasons for granting the petition ................... 7

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TABLE OF AUTHORITIES

Cases:

Abramowitz v. EPA, 832 F.2d 1071 (9th Cir.

TESS Se Oi oy Sy SIL 12

Arizona v. Thomas, 829 F.2d 834 (9th Cir. 1987) .. 5

Arizona v. Thomas, 824 F.2d 745 (9th Cir. 1987) .. 5

Citizens to Preserve Overton Park v. Volpe, 401

ns i on ea nok 6e ee 05s esses y

Department of the Treasury v. FLRA, 110 S. Ct.

a cok oc esa ae cuemew eee 10, 12

Environmental Defense Fund v. Thomas, 870 F.2d

EP PIV TTT TET CT eT Tore 12

Farmers Union Central Exchange, Inc. v. Thomas,

ee ee Fe On Gs BUD c ccc cccnnecesscce 12

FCC v. Pottsville Broadcasting Co., 309 U.S. 134

rs ks eda Gb aceeaaks owsses ces 10

FCC v. Schreiber, 381 U.S. 279 (1965) ........... 9

FPC v. Idaho Power Co., 344 U.S. 17 (1952) ..... 10

FPC vy. Transcontinental Gas Pipe Line Co., 423

nee ts een uaa da denis wee 5s 10

FTC v. Morton Salt Co., 334 U.S. 37 (1948) ...... 10

(111)

IV

Cases — Continued: Page

General Motors Corp. v. United States, 110 S. Ct.

DNs a cGdnens odeesdinesneseaeade a 4, ¢, &,

11, 14, 15

Indiana & Michigan Elec. Co. v. EPA, 733 F.2d

er re 12

Kamp v. Hernandez, 752 F.2d 1444 (9th Cir.

SN Os eee sh dkwécaweseaneeceacedens 12

Kennecott Copper Corp. v. Costle, 572 F.2d 1349

i ED ies ck ds erscbacsseanseesen’ss 12

Maine v. Thomas, 874 F.2d 883 (ist Cir. 1989) err 12

Rodway v. Department of Agriculture, 514 F.2d

ee es ES beeawb is kadeacectsdeas 13

Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir.

SE ceeded cae okie bone ed bataacnnundses 12

Small Refiner Lead Phase-Down Task Force v.

EPA, 705 F.2d 506 (D.C. Cir. 1983) ........... 13-14

United States v. National Steel Corp., 767 F.2d

eae shedenens 13

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

DEE SUR uc a eacsh cn oktessesenasekenneannes 10

Statutes:

Clean Air Act, 42 U.S.C. 7401 ef seq. ........... 2

Ss SE soa Xeacsudcsensaceaas 3

OBE, Ge Ge POD 6c cnlenceccceces 3

© Rs FE ch ke waepeeccdesasaere 3

§ 110(a)(i (A), 42 U.S.C. 7410(a)(1 MA) ..... 3

§ 110(a)(2), 42 U.S.C. 7410(a)(2) ........... 3

§ 110(a)(2)(1), 42 U.S.C. 7410(a)(2)() ..... . 4

OD OE, Gee as PD occ cccecsscsines 9

§ 110(c)(1), 42 U.S.C. 7410(c)\(1) ........... 3, 4,

13, 19a

Bit WegiS Fake errr rere 8

eee as SEE bbb oeo06s ccecescercs 3

§ 172(a)(1), 42 U.S.C. 7502(a)(1) ........... 4

Statutes — Continued: Page

§ 172(a)(2), 42 U.S.C. 7502(a)(2) ........... 4

> Cae es BO. sk. o e's ans ealdae 4

i er 5 ee 7, 8,9, 11

© SOGteD, 42 U.S.C, FORD oc cc cccccces os ae

§ 304(a)(2), 42 U.S.C. 7604(a)(2) ......... a4 3.

I HE rs ook ss oe aa 7, 8, 10

§ 307(b)(1), 42 U.S.C. 7607(b)\(1) ........ 2, 4, 6, 21a

F @ gtk Fee ry 4

SDs Ge Chas PED 66s 5 eed ccc edter 4

Clean Air Act Amendments of 1970, Pub. L. No.

rer errr be 3

Clean Air Act Amendments of 1977, Pub. L. No.

a ee EE o's x deo a adden eee cae 3

Miscellaneous: “

— SS. 1630, 101st Cong., 2d Sess. (1990) ............ ll

In the Supreme Court of the Qnited States

OcTOBER TERM, 1990

No.

WiLLIAM K. REILLY, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, ET AL., PETITIONERS

Vv.

ROBERTA DELANEY, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of William K. Reilly,

Administrator of the Environmental Protecton Agency

(EPA), et al., petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINION BELOW

The amended opinion of the court of appeals (App.,

infra, \a-16a) is reported at 898 F.2d 687.

JURISDICTION

The judgment of the court of appeals (App., infra, 18a)

was entered on March 1, 1990. A petition for rehearing

was denied on May 16, 1990 (App., infra, 17a). On August

9, 1990, Justice O”Connor extended the time for filing a

(1)

2

petition for a writ of certiorari to and including September

13, 1990. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Clean Air Act, 42 U.S.C.

7401 ef seq., are set out in the appendix to this petition.

See App., infra, 19a-22a.

STATEMENT

The Clean Air Act, 42 U.S.C. 7401 ef seq., provides two

basic avenues to obtain judicial relief relating to EPA’s

implementation of the Act. Section 307(b}(1) authorizes

the courts of appeals to review—and if necessary

reverse — various actions of the Administrator. 42 U.S.C.

7607(b)(1). Section 304(a)(2), by contrast, authorizes the

district courts to compel agency action where “there is

alleged a failure of the Administrator to perform any act

or duty under this chapter which is not discretionary with

the Administrator.” 42 U.S.C. 7604(a)(2). In this case,

respondents commenced an action against the Adminis-

trator under Section 307 of the Clean Air Act challenging

his approval of the State of Arizona’s revisions to its state

implementation plan. The court of appeals held that the

Administrator’s action was, in certain respects, arbitrary

and capricious, and it reversed the Administrator’s ap-

proval. The court of appeals also went one step further

and ordered the Administrator to promulgate a “federal

implementation plan”—to replace the disapproved state

plan—within six months. The question presented is

whether the court of appeals has authority to impose that

requirement, which seriously impairs the Administrator’s

ability to carry out his responsibilities under the Act.

3

1. The Clean Air Act creates a comprehensive national

program for combatting pollution. The basic structure of

the present Act was established by the Clean Air Act

Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676,

and is set out in Sections 109 and 110 of the present Act.

Congress charged the Administrator of EPA with develop-

ing “national *** ambient air quality standards”

(NAAQS). § 109(a), 42 U.S.C. 7409(a). Congress then re-

quired each State to develop and submit to EPA, within

nine months after promulgation of the NAAQS, a state

implementation plan (SIP) to achieve and maintain the

NAAQS within the State. § 110(a)(1)(A), 42 U.S.C.

7410(a\(1)(A). The Administrator was required to deter-

mine whether each SIP met certain statutory re-

quirements, including the attainment of applicable

“primary” NAAQS, as “expeditiously as practicable” but

generally not later than three years from the date of ap-

proval of the SIP. § 110(a)(2), 42 U.S.C. 7410(a)(2). If a

State failed to submit a SIP, or if the Administrator deter-

mined that the SIP failed to meet the Clean Air Act’s re-

quirements, the Administrator was empowered to pro-

mulgate his own plan (a federal implementation plan or

FIP) for the State. § 110(c)(1), 42 U.S.C. 7410(c){1). See

generally General Motors Corp. v. United States, 110 S.

Ct. 2528, 2530 (1990).

In 1977, Congress amended the Clean Air Act to re-

spond, in large part, to the States’ widespread failure to

meet the attainment dates of the 1970 Amendments. Clean

Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat.

685. The 1977 Amendments retained much of the structure

of the 1970 Amendments, but they also created the con-

cept of a “nonattainment area” —an area where air quality

falls short of NAAQS. § 171, 42 U.S.C. 7501. The 1977

Amendments required each State containing 2 nonattain-

ment area to prepare and secure EPA approval of a new

4

SIP by July 1, 1979. §§ 110(a)(2)(1), 172(b), 42 U.S.C.

7410(a)(2)(1), 7502(b). Congress extended the deadline for

attainment of the primary NAAQS in a nonattainment

area to December 31, 1982. § 172(a)(1), 42 U.S.C.

7502(a)(1). Further extensions were permitted for

“photochemical oxidarts” (ozone) and carbon monoxide,

but only if the State demonstrated that attainment was not

possible by 1982, despite the implementaion of all

reasonably available measures, and that attainment would

be achieved “as expeditiously as practicable but not later

than December 31, i987.” § 172(a)(2), 42 U.S.C.

7502(a)(2). The 1977 Amendments retained the provisions

requiring the Administrator to promulgate a FIP if the

State failed to submit an adequate SIP. See § 110(c)(1), 42

U.S.C. 7410(c)(1). See generally General Motors, 110 S.

Ct. at 2530.

As we have noted, the Clean Air Act provides aggrieved

persons with two forms of judicial relief. First, Section

307(b)(1) authorizes a court of appeals to review, and if

necessary reverse, various actions of the Administrator,

including “the Administrator’s action in approving or pro-

mulgating any implementation plan” for achieving the

Act’s ambient air quality standards. 42 U.S.C. 7607(b)(1).

See also 42 U.S.C. 7607(d). Section 307(e) states that

“{njothing in this chapter shall be construed to authorize

judicial review of regulations or orders of the Ad-

ministrator under this chapter, except as provided in this

section.” 42 U.S.C. 7607(e). Second, Section 304(a)(2)

provides that a person may commence a Civil action in a

district court against the Administrator of EPA where

“there is alleged a failure of the Administrator to perform

any act or duty under this chapter which is not discre-

tionary with the Administrator.” 42 U.S.C. 7604(a)(2).

The district court has jurisdiction “to order the Ad-

ministrator to perform such act or duty, as the case may

be.” 42 U.S.C. 7604(a).

2. This case arises from a challenge by respondents —a

group of Arizona citizens—to the Administrator’s ap-

proval of Arizona’s state implementation plan for portions

of Maricopa and Pima Counties. In 1978, EPA designated

parts of those counties (which embrace, respectively,

Phoenix and Tucson) as nonattainment areas for carbon

monoxide. In 1979, Arizona submitted SIP revisions for

both areas and applied for an extension of the 1982 attain-

ment deadline to 1987. In 1982, the Administrator gave

conditional approval to Arizona’s SIP revisions. Three

years later, respondents filed an action against the Ad-

ministrator in district court, under Section 304(a)(2) of the

Clean Air Act, to obtain an order declaring the Arizona

SIP revisions inadequate and requiring EPA to perform

its “non-discretionary” duty to prepare a FIP for

Maricopa and Pima Counties (McCarthy v. Thomas, No.

85-CV-344 (D. Ariz.) (complaint filed Apr. 8, 1985)). See

App., infra, 3a.'

Upon the agreement of the parties, the district court

entered an order staying the suit until January 1, 1987. See

McCarthy v. Thomas, supra (order filed Feb. 19, 1986).

In late 1986, the Administrator denied Arizona’s applica-

tion for a deadline extension, revoked its 1982 conditional

approval, and ultimately did not approve Arizona’s subse-

quent SIP revisions. See App., infra, 3a. The district

court subsequently ordered the Administrator to prepare a

FIP no later than six months after September 30, 1987,

unless, before that date, Arizona submitted and the Ad-

' The court of appeals incorrectly suggested that respondents filed

their district court action at a later date. See App., infra, 3a.

2 See Arizona v. Thomas, 829 F.2d 834 (9th Cir. 1987); see also

Arizona v. Thomas, 824 F.2d 745 (9th Cir. 1987).

6

ministrator approved adequate SIP revisions. McCarthy

v. Thomas, supra (order filed Aug. 11, 1987). The court

later extended that deadline to August 10, 1988. McCarthy

v. Thomas, supra (order filed Apr. 19, 1988). Arizona

submitted SIP revisions and the Administrator ultimately

approved them on August 10, 1988. See App., infra, 3a.

Respondents then brought the present action in the

court of appeals, under Section 307(b)(1) of the Clean Air

Act, challenging the Administrator’s approval of

Arizona’s SIP revisions. The court of appeals granted the

petition for review and vacated the Administrator’s ap-

proval. The court first overturned the Administrator’s

determination that the nonattainment areas are entitled to

take three years, from the date of SIP approval, to come

into compliance. The court held that, where a state has

failedto-meet Congress’s 1982 attainment deadline, the

SIP must provide for attainment “as soon as possible.”

App., infra, 4a-8a. The court next rejected, as “arbitrary

and capricious,” the Administrator’s failure to require

adoption of a number of air pollution control measures

that, in the court’s view, EPA guidance documents

presume are “reasonably available.” The court stated that

under EPA’s guidelines Arizona must bear the burden of

demonstrating that the measures would not accelerate the

projected attainment date. /d. at 8a-1la. The court also re-

jected, as arbitrary and capricious, the Administrator’s

determination that the Maricopa County SIP revisions

contain adequate “contingency” and “conformity” provi-

sions. /d. at 1la-13a. The court denied relief on respond-

ents’ other challenges to the SIP revisions. /d. at 13a-1l6a.

In the concluding paragraph of its opinion, the court

Stated:

We vacate the EPA’s approvals of Maricopa and

Pima counties’ Clean Air Act implementation plans.

We direct the EPA to disapprove these plans and to

promulgate federal implementation plans consistent

with this opinion within six months.

Id. at 16a.

The government filed a petition for rehearing and a sug-

gestion of rehearing en banc limited to the question of the

court of appeals’ relief. The government urged that the

court of appeals lacked authority to order EPA to pro-

mulgate a FIP and that the six-month deadline for FIP

promulgation was inconsistent with the statute and

unreasonable. On May 16, 1990, the court of appeals

denied the petition without opinion. App., infra, 17a.

REASONS FOR GRANTING THE PETITION

As this Court recently explained, the Clean Air Act pro-

vides specific, carefully crafted remedies for agency inac-

tion, and the courts do not have license to supplant the

statutory remedies with judicially created ones. See

General Motors Corp. v. United States, 110 S. Ct. 2528,

2533-2534 (1990). That reasoning applies with equal force

in this case. Section 307 of the Clean Air Act authorizes

the court of appeals to review and, if necessary, reverse the

Administrator’s approval of Arizona’s SIP revisions. The

court had no authority, however, to take the further step

of ordering the Administrator to promulgate a FIP within

a specified time period. This Court’s decision in General

Motors specifically identified Section 304 of the Clean Air

Act, which authorizes the district courts to compel agency

action, as the appropriate source of judicial relief in the

event that the Administrator fails to perform a non-discre-

tionary duty. The court of appeals did not have the benefit

3 Similarly, in this Court, we do not seek review of the court of ap-

peals’ determinations as to the adequacy of Arizona’s SIP revisions.

of this Court’s General Motors decision at the time it

entered its decision. We therefore suggest that this Court

grant our petition, vacate the court of appeals’ judgment

insofar as it orders the Administrator to prepare a FIP

within a specified time period, and remand the case for

further consideration in light of that decision. In the alter-

native, we urge this Court to reverse summarily the court

of appeals’ judgment insofar as it orders inappropriate

relief. |

1. In General Motors, the petitioners argued that

EPA’s failure to approve a State’s SIP revisions in a timely

manner barred EPA from enforcing the provisions of an

existing SIP. This Court rejected that contention, holding

that Congress did not intend to bar EPA enforcement suits

in those circumstances and that the courts have no

authority to impose such a bar. 110 S. Ct. at 2533-2534.

The Court explained that the Clean Air Act provides

“statutory remedies * * * when EPA delays action on a

SIP revision” and that courts accordingly should not

create other remedies in their stead. Jd. at 2534. The Court

specifically stated that “the statutory remedies for EPA in-

action include a suit to compel agency action under

§ 304(a)(2).” Id. at 2534 n.4. As we have explained, Sec-

tion 304 authorizes a district court to order the Ad-

ministrator to perform non-discretionary duties. See 42

U.S.C. 7604.

The Court’s decision in General Motors arose in the

context of an EPA enforcement suit, brought under Sec-

tion 113(b) of the Act (42 U.S.C. 7413(b)), against a pollu-

tion source. The Court’s reasoning, however, is equally

applicable in this case. Here, respondents brought a Sec-

tion 307 suit seeking judicial review of the Administrator’s

approval of Arizona’s SIP revisions. Section 307

authorizes a court of appeals to review, and, if necessary,

reverse, the Administrator’s approval. Once the court of

9

appeals reversed the Administrator’s action, however, that

court’s reviewing function was at an end. The court had no

authority to require EPA to promulgate a FIP within a

specified time period. Section 110(c) sets forth the Ad-

ministrator’s obligations in the event a State’s proposed

SIP revisions are rejected. See 42 U.S.C. 7410(c). If the

Administrator fails to fulfill his statutory obligations,

respondents have a remedy. As General Motors indicates,

they may bring a Section 304 suit to compel the Ad-

ministrator to perform a non-discretionary duty.

Indeed, the principle recognized in General Motors ap-

plies with even greater force in this case. As an initial mat-

ter, the court of appeals was not entitled to presume that

the Administrator would fail to promulgate a FIP in a

timely manner. See FCC v. Schreiber, 381 U.S. 279, 296

(1965) (administrative agencies are entitled to the

presumption “that they will act properly and according to

law”). See also, e.g., Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 415 (1971). Additionally, Congress

has not given the courts of appeals jurisdiction to provide

a remedy for the Administrator’s failure to perform a non-

discretionary duty; to the contrary, Congress’s remedy, set

forth in Section 304, lies strictly in the district courts.

Moreover, the Clean Air Act’s carefully crafted provisions

for judicial oversight are themselves drawn from settled

principles of administrative law.

This Court has consistently recognized that once a

reviewing court finds an agency’s action invalid and sets it

aside, the court’s reviewing function is at an end and the

matter returns to the agency for further appropriate agen-

cy action. The Court stated the “guiding principle” nearly

40 years ago:

{T]he function of the reviewing court ends when an

10

error of law is laid bare. At that point the matter once

more goes to the [agency] for reconsideration.

FPC v. Idaho Power Co., 344 U.S. 17, 20 (1952).4 The

Clean Air Act’s judicial review provisions employ this

principle. Secion 307 empowers the reviewing court —in

this case the court of appeals —to review and, if necessary,

reverse agency action, but it does not give the court power

to direct the agency’s subsequent activities on remand. As

the Court has recognized, an agency’s task on remand re-

mains “infused with judgment and discretion, requiring

the ‘ “accommodation of conflicting policies that were

committed to the agency’s care.” ’” Department of the

Treasury v. FLRA, 1108S. Ct. 1623, 1629 (1990). “It is not

a task [courts] ought to undertake on the agency’s behalf

in reviewing its orders.” Jd. at 1630. See FCC v. Pottsville

Broadcasting Co., 309 U.S. 134, 144 (1940).

4 See FTC v. Morton Salt Co., 334 U.S. 37, 55 (1948); FCC v.

Pottsville Broadcasting Co., 309 U.S. 134, 140-146 (1940). This Court

has repeatedly followed that principle. For example, the Court con-

cluded in FPC v. Transcontinental Gas Pipe Line Co., 423 U.S. 326

(1976), that a lower court, by ordering an agency to complete an inves-

tigation within 30 days, had “overstepped the bounds of its reviewing

authority.” /d. at 329-330, 331. The Court explained that

a reviewing court may not, after determining that additional

evidence is requisite for adequate review, proceed by dictating to

the agency the methods, procedures, and time dimension of the

needed inquiry and ordering the results to be reported to the court

without opportunity for further consideration on the basis of the

new evidence by the agency.

Id. at 333. See also, e.g., Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., 435 U.S. 519, 524-525

(1978). Similarly, when this Court recently held that the Federal Labor

Relations Authority erred in its application of certain provisions of

the Civil Service Reform Act, the Court refused to adopt a “permis-

sible” alternative interpretation because the agency had not considered

the interpretation “in the first instance.” Department of the Treasury

v. FLRA, 110 S. Ct. 1623, 1629 (1990).

11

The court of appeals’ requirement that the Adminis-

trator develop a federal implementation plan within six

months, like the enforcement bar in General Motors, was

apparently intended to motivate prompt agency action.°

The Clean Air Act contains other provisions, hqwever, to

ensure that the Administrator acts with appropriate

dispatch. As the Court noted in General Motors, Section

304 authorizes interested citizens to bring suit against the

Administrator “where there is alleged a failure of the

Administrator to perform any act or duty under this

chapter which is not discretionary with the

Administrator.” 42 U.S.C. 7604(a)(2). See 110 S. Ct. at

2534 & n.4. Significantly, however, such suits must be

brought in a district court, which—unlike a court of ap-

peals — has the factfinding capabilities necessary to investi-

gate the reasons for the agency’s inaction, to determine an

appropriate remedy and its timing, and to modify the

remedy to the extent that changed circumstances dictate.

Congress was careful to give the courts of appeals power

over those matters that require judicial review of com-

pleted agency action, while conferring authority on the

district courts as to those matters requiring the exercise of

factfinding and enforcement powers. The court of ap-

peals’ decision in this case, which would require that court

to assume the factfinding role of a district judge, upsets

Congress’s carefully drawn distinction.®

’ The court’s concern in understandable. Arizona repeatedly has

failed to meet the Clean Air Act’s deadlines for attainment of the

NAAQS. But Arizona is not alone. Indeed, the problem of continuing

nonattainment, now as in 1977, is an important legislative topic. Con-

gress is presently considering revisions to the Clean Air Act that will

address that matter. See S.. 1630, 101st Cong., 2d Sess. (1990) (The

Clean Air Act Amendments of 1990).

¢ The courts of appeals have repeatedly recognized the Clean Air

Act’s bifurcated system for judicial oversight of the agency’s imple-

12

2. Although the legal objection that we present in this

petition is narrow, it raises a matter of great practical im-

portance. The court of appeals’ requirement that the

Administrator promulgate a FIP within a specified time

period places severe limitations on the Administrator’s

ability to exercise “judgment and discretion” (FLRA, 110

S. Ct. at 1629) in formulating a legally adequate FIP. The

court of appeals’ six-month deadline is not required by

statute and was formulated without regard to (or even sig-

nificant inquiry into) what the development of a FIP en-

tails. The Administrator is moving resolutely to meet the

court of appeals’ six-month deadline. That deadline, how-

ever, has required a redirection of EPA’s limited resources

during a period of serious budgetary constraints and has

hampered the Administrator’s ability to exercise consid-

ered judgment in a sensitive matter of joint federal-state

concern.’

mentation of the Act. See Maine v. Thomas, 874 F.2d 883, 884 (ist

Cir. 1989); Environmental Defense Fund vy. Thomas, 870 F.2d 892,

896 (2d Cir. 1989); Sierra Club v. Thomas, 828 F.2d 783, 787 (D.C.

Cir. 1987); Indiana & Michigan Elec. Co. v. EPA, 733 F.2d 489,

490-491 (7th Cir. 1984). The Ninth Circuit has itself noted that the Act

assigns separate roles to the courts of appeals and the district courts.

See Farmers Union Central Exchange, Inc. v. Thomas, 881 F.2d 757,

760 (1989); Abramowitz v. EPA, 832 F.2d 1071, 1075 (1987). See also

Kamp v. Hernandez, 752 F.2d 1444, 1454 (1985); Kennecott Copper

Corp. v. Costle, 572 F.2d 1349, 1353 (1978).

’ The court of appeals’ mandate issued on May 25, 1990, and the

Administrator accordingly is under an obligation to complete the

promulgation of the FIP by November 26, 1990. The agency has con-

ducted new air quality modeling for the affected regions, which entails

the use of data on emissions and pollutant concentrations to predict

mathematically the effects of future pollution controls. The Adminis-

trator intends to analyze the modeling results, determine appropriate

control measures and publish a notice of proposed rulemaking on

September 20, 1990. A public hearing will be held in October, and the

13

The court of appeals’ order not only curtails the Admin-

istrator’s exercise of discretion, it eliminates or hampers

the ability of other interested parties to exercise their

Statutory rights. For example, Section 110(c)(1) of the

Clean Air Act provides that a State may avoid the Admin-

istrator’s imposition of a FIP if, prior to its promulgation,

“such State has adopted and submitted a plan (or revision)

which the Administrator determines to be in accordance

with the requirements of this section.” § 110(c)(1), 42

U.S.C. 7410(c)(1). The court of appeals’ order in this case,

however, prevents Arizona from exercising that important

right and limits the State to “submit[ting] proposals to the

EPA for its consideration in developing the plans.” App.,

infra, 1\6an.1. In addition, EPA expects that Arizona citi-

zens, who will be directly affected by the FIP’s pollution

control measures, will wish to participate through the

public commenting process in the preparation of the FIP.

The court of appeals’ deadline, however, will impose

serious time constraints on the Administrator’s ability to

analyze public comments in formulating the final rule. See

note 6, supra. Indeed, it is not uncommon, and sometimes

necessary, for an agency to issue a revised proposed rule

in response to public comments. See, e.g., United States v.

National Steel Corp., 767 F.2d 1176, 1181 (6th Cir. 1985).

See also Small Refiner Lead Phase-Down Task Force v.

public comment period will close in early November. If the govern-

ment fails to secure relief from the court of appeals’ order, the Ad-

ministrator will have a mere three weeks to analyze the public com-

ments, make appropriate revisions, and sign a final rule. See Rodway

v. Department of Agriculture, 514 F.2d 809, 817 (D.C. Cir. 1975)

(noting an agency’s obligations to “respond in a reasoned manner to

the comments received, to explain how the agency resolved any signifi-

cant problems raised by the comments, and to show how that resolu-

tion led the agency to the ultimate rule”).

14

EPA, 705 F.2d 506, 546-547 (D.C. Cir. 1983). The court

of appeals’ timetable intrusively forecloses that option.

As this Court observed, there is a special need to adhere

to Congress’s dictates where “important public rights are

at stake.” General Motors, 110 S. Ct. at 2534. In this case,

the Clean Air Act specifies an important but limited role

for the court of appeals, namely, to review agency action.

The court of appeals ignored the Act’s limitations and dic-

tated the Administrator’s actions on remand. This Court's

recent decision in General Motors indicates that the court

of appeals acted improperly. We submit, however, that

the court of appeals should be given an opportunity to

reconsider its decision before this Court conducts plenary

review. The court of appeals’ decision was issued prior to

this Court’s guidance in General Motors, and the court's

opinion provided no reasoning or justification for its deci-

sion or for its departure from other established precedent.

We suggest, accordingly, that this aspect of the court of

appeals’ judgment should be vacated and the case re-

manded to the court of appeals for reconsideration in light

of General Motors.

In the alternative, it would be appropriate for this Court

to reverse summarily the court of appeals’ judgment

insofar as it dictates the Administrator’s actions on re-

mand. The court’s presumption that the Administrator

would not act properly and according to law, and the

court’s exercise of control over the Administrator’s activi-

ties on remand (including their scheduling), are flatly in-

consistent with well settled principles of administrative

law. Moreover, the court of appeals’ actions will seriously

hamper the Administrator’s ability to promulgate a FIP

that satisfies the requirements of the Clean Air Act while

providing the State of Arizona, its citizens, and other af-

fected persons with an appropriate opportunity for public

participation.

15

CONCLUSION

The petition for a writ of certiorari should be granted,

the judgment of the court of appeals vacated insofar as it

orders the Administrator to promulgate a FIP within a

specified time period, and the case remanded for further

consideration in light of this Court’s decision in General

Motors Corp. v. United States, 110 S. Ct. 2528 (1990). In

the alternative, the Court may wish to consider summary

reversal of the court of appeals’ judgment insofar as it

orders inappropriate relief.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

E. DONALD ELLIOTT Assistant to the Solicitor General

General Counsel MICHAEL A. MCCoRD

ALAN ECKERT DAVID W. ZUGSCHWERDT

Associate General Counsel Altorneys

SARA SCHNEEBERG

Attorney

Environmental Protection

Agency

SEPTEMBER 1990

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 88-7368

ROBERTA DELANEY; GAYLE HARTMANN, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Petition for Review of Action by the

Environmental Protection Agency

Argued and Submitted

June 26, 1989—San Francisco, California

Filed March 1, 1990

Amended April 11, 1990

AMENDED OPINION

Before: THOMAS TANG, STEPHEN REINHARDT and

CHARLES WiGGINS, Circuit Judges.

(la)

2a

OPINION

WIGGINS, Circuit Judge:

Residents of Maricopa and Pima counties, Arizona,

petition this court to vacate as arbitrary and capricious the

Environmental Protection Agency’s approvals of the

counties’ Clean Air Act implementation plans. We have

jurisdiction under 42 U.S.C. § 7606(b)(1) (1982). We

vacate the EPA’s approvals of the plans, and direct the

EPA to take further action consistent with this opinion.

BACKGROUND

The Clean Air Act, as amended in 1970, mandated that

states as expeditiously as practicable, but not later than

December 31, 1975, reduce the levels of certain ambient

pollutants to comply with the National Ambient Air

Quality Standards set by the EPA. 42 U.S.C. § 7409(a),

(b) (1982). Preliminarily, each state had to develop a state

implementation plan to achieve this goal. 42 U.S.C.

§ 7410(a) (1982).

After many areas of the country failed to attain some or

all of the national ambient air quality standards on time,

Congress amended the Act in 1977, providing new dead-

lines for nonattainment areas. 42 U.S.C. §§ 7501-7508

(1982). The 1977 amendments required states to submit by

January 1, 1979, for each of their nonattainment areas, a

revised implementation plan that provided for implemen-

tation of all reasonably available control measures to at-

tain the relevant national ambient air quality standards as

expeditiously as practicable, but not later than Decem-

ber 31, 1982. 42 U.S.C. § 7502. if a state did not submit

an adequate revised state implementation plan by the 1979

deadline, the EPA had to promulgate its own federal im-

plementation plan. 42 U.S.C. §§ 7410(c)(1), 7502(b)(1).

The 1977 amendments provided only one exception: If a

3a

state demonstrated in its revised implementation plan that

the carbon monoxide or ozone ambient air quality stand-

ard could not be attained by the close of 1982 despite im-

plementation of all reasonably available control measures,

the state could have until the end of 1987 to attain the rele-

vant air quality standard in that nonattainment area. 42

U.S.C. § 7502(a)(2). In that case, the state had to submit a

second revised implementation plan to the EPA by July 1,

1982. 42 U.S.C. § 7502(c).

In 1978, the EPA designated large areas of both Mari-

copa and Pima counties as nonattainment areas for carbon

monoxide. In 1979, Arizona submitted revised implemen-

tation plans for both areas. In 1983, the EPA approved

the plans subject to certain conditions. Neither area,

however, satisfied the EPA’s conditions or attained the

carbon monoxide standard by the 1982 deadline. Arizona

failed in its attempt to extend both areas’ attainment

deadlines to 1987, but submitted additional revised plans

for the areas to attain by the 1987 deadline anyway. The

EPA rejected these additional revised plans and we upheld

that decision. Arizona v. Thomas, 824 F.2d 745 (9th Cir.

1987), later proceeding 829 F.2d 834 (9th Cir. 1987).

When Arizona thereafter failed to submit adequate

plans for Maricopa and Pima counties, petitioners filed

suit in the Arizona district court. That court ordered the

EPA to promulgate implementation plans for both coun-

ties by March 30, 1988 (later extended to August 10, 1988),

unless before this date Arizona submitted, and the EPA

approved, adequate state plans. McCarthy v. Thomas,

No. 85-344 (D. Ariz. August 10, 1987). Arizona sub-

mitted, and the EPA ultimately approved (with revisions),

state implementation plans for both counties on August

10, 1988. Petitioners now challenge these approvals.

4a

DISCUSSION

We will not set aside the EPA’s approval of a state im-

plementation plan unless it is arbitrary, capricious, or

Otherwise not in accordance with law. 5 U.S.C.

§ 706(2)(A); Arizona v. Thomas, 824 F.2d at 748. We will

not set aside an agency’s construction of a statute it is im-

plementing unless that construction conflicts with clear

congressional intent or is unreasonable. Chevron USA,

Inc. v. Natural Resources Defense Counsel, Inc. , 467 U.S.

837, 842-45 (1984).

I. THE EPA’S DECISION THAT DELINQUENT NONATTAIN-

MENT AREAS MAY TAKE THREE YEARS FROM

APPROVAL OF THEIR STATE IMPLEMENTATION PLAN

TO ATTAIN THE NATIONAL AMBIENT AIR QUALITY

STANDARDS

Because the Clean Air Act amendments of 1977 made

the 1982 compliance deadline absolute (with the one

exception noted above), the amendments did not specify

an additional deadline for nonattainment areas that failed

to obtain revised implementation plan approval and na-

tional ambient air quality standard compliance by the 1982

deadline. In this circumstance, the EPA adopted the

policy that it should evaluate the adequacy of the Mari-

copa and Pima county plans based on whether they pro-

vide for attainment by three years from the date it ap-

proved those plans, August 10, 1991. Petitioners contend

that the EPA’s policy is arbitrary and capricious. Now that

the 1977 amendments’ deadline for compliance has passed,

petitioner assert, Pima and Maricopa Counties must attain

the carbon monoxide ambient air quality standard as soon

as possible utilizing every available control measure.

The EPA contends that Congress expressed no clear in-

tent on the attainment deadline that the EPA should apply

Sa

in evaluating the Maricopa and Pima county plans because

the 1977 amendments did not specify a deadline for nonat-

tainment areas that failed to obtain revised state im-

plementation plan approval and national ambient air

quality standard compliance by the 1982 deadline. The

EPA argues that this amounts to a “statutory gap.” As a

result, the EPA believes, we must uphold its policy of

allowing compliance within three years of state implemen-

tation plan approval because it is a reasonable construc-

tion of the 1977 amendments.

The EPA argues that if Congress had considered that

some nonattainment areas would not meet the deadline

specified in the 1977 Amendments, Congress would have

intended that the EPA administratively establish a new

three year attainment period from the date of implementa-

tion plan approval deadline, like those provided in the

Clean Air Act amendments of 1970. The EPA contends

that this result is consistent with the language, history, and

overall purposes of the Act. The EPA contends that Con-

gress knew some states would not attain by the 1982 dead-

line and did not intend that states implement draconian

measures.

The EPA explains the seemingly absolute nature of the

1977 amendments’ 1982 deadline by stating that some leg-

islators felt the need to keep fixed deadlines, even as

“somewhat of a legal myth,” because they “provided a

basis for obtaining maximum progress towards clean air.”

Transcript, Mark-up, Clean Air Act Amendments, at 13

(May 4, 1977) (Statement of Sen. Domenici), reprinted in

State Implementation Plans for Nonattainment Areas for

Ozone and Carbon Monoxide: General Preamble and

Notice of Future Actions, 52 Fed. Reg. 26,408 (July 14,

1987) [hereinafter “Preamble and Notice”]. If the

deadlines turned out not to be realistic, there would be

6a

“plenty of time for legislative relief.” 123 Cong. Rec.

18,038 (June 8, 1977) (Statement of Sen. Stafford),

reprinted in Preamble and Notice, 52 Fed. Reg. 26,408

(July 14, 1987). The EPA contends that petitioners’ posi-

tion would require the draconian measures that Congress

allegedly intended to avoid. The EPA argues that, in ef-

fect, it is just doing what Congress did in 1977 when, faced

with many states’ failure to meet attainment deadlines,

Congress revised the Clean Air Act, extending those dead-

lines at least three years.

Although we recognize the EPA’s predicament, we can-

not accept the EPA’s position. As the EPA itself recog-

nizes, Congress explicitly declined to allow extensions of

the deadline because it believed an absolute deadline to be

necessary. Other circuits have characterized the 1982 dead-

line as the “ ‘heart’ of the 1977 Amendments,” City of

Seabrook v. EPA, 659 F.2d 1349, 1357 (Sth Cir. 1981),

cert. denied, 459 U.S. 822 (1982), implemented according

to a precise schedule to avoid a repetition of the failure of

many states to attain the national ambient air quality

standards by the deadline specified in the 1970 amend-

ments. Connecticut Fund for the Environment vy. EPA,

672 F.2d 998, 1001-02 (2d Cir.), cert. denied, 459 U.S.

1035 (1982).

This court has already found the deadlines of the 1977

amendments to be “clear and unambiguous.” Abramowitz

‘vy. EPA, 832 F.2d 1071, 1079 (9th Cir. 1987). We stated:

Because we find the language of the Act clear and

unambiguous, we do not believe that EPA has the

discretion to ignore the statutory deadline. We are in-

formed by counsel for both sides of their expectation

that Congress will extend the deadline once again in

the near future, but we must apply the law as it now

stands, not as it may become. . . . Until the Clean Air

Ta

Act is further considered . . . the Agency must “give

effect to the unambiguously expressed intent of Con-

gress.”

Id. (citations omitted).

We, and the EPA, are bound by the statutory scheme

until Congress alters that scheme. As the EPA states in

one of its national guidance documents:

[T]he legislative history shows that Congress set up

the Part D system in order to force communities and

industry to do their utmost to bring about attainment

as rapidly as possible and expected that a future Con-

gress would change the course it had set, if necessary,

to avoid any unacceptable consequences.

.. . Plainly, the original intention of the commit-

tee, which evolved ultimately into the current Part D

system, was to generate [state implementation plans]

that would provide for attainment by a specific date,

even if they contained draconian measures, and to

leave the task of making adjustments to a future Con-

gress.

Preamble and Notice, 52 Fed. Reg. 26,407-08 (July 14,

1987). ,

When Congress has explicitly set an absolute deadline,

congressional intent is clear. It is a semantic game to claim

that once a state fails to meet an absolute deadline, a

statutory gap is created because Congress has not provided

a back-up deadline for its explicitly absolute deadline. If

Congress had been more lenient and allowed a one-year

fall back extension, the EPA would be bound by that

directive. The EPA cannot extract leeway from a statute

that Congress explicitly intended to be strict.

In any case, the EPA’s national guidance documents

state that for those areas that qualified for an extension

8a

from 1982 to 1987, if their control measures “are not ade-

quate to demonstrate attainment by 1987, additional

measures which can be implemented after 1987 must be

identified and adopted and attainment must be demon-

strated by the earliest possible date.” Environmental Pro-

tection Agency Criteria for Approving 1982 Ozone and

Carbon Monoxide Plan Revisions, 46 Fed. Reg. 7186

(January 22, 1981) [hereinafter “Criteria”]. “The 1982

[state implementation plan] revision ... must demon-

strate that all possible measures will be implemented. . . .”

Id. at 7188 (listing four examples of additional control

measures). We believe that it is unreasonable for the EPA

to treat more leniently areas that did not qualify for the

1987 extension than areas that did qualify. We believe that

the only reasonable interpretation of the 1977 amend-

ments is that if the 1982 deadline that Congress specified is

not met, the national ambient air quality standards must

be attained as soon as possible with every available control

measure, including those that the EPA identified in its

criteria for approving 1982 plans.

Il. THE EPA’S DECISION THAT THE MARICOPA AND PIMA

PLANS PROVIDE FOR SUFFICIENT CONTROL

MEASURES

The plans that the EPA approved for Maricopa and

Pima Counties are similar. Both require that:

(1) gas stations sell only high oxygen content fuel

during winter months (when carbon monoxide levels

are highest);

(2) large employers reduce the amount of single car

commuting by their employees;

(3) automobiles be tested for emission levels while

under load as well as while idling.

9a

Petitioners point out that neither the Maricopa plan nor

the Pima plan adopts most of the forty-five measures rec-

ommended in a study of Maricopa County conducted by

the Maricopa Association of Governments, a regional

planning organization. Similarly, neither plan adopts most

of the twelve measures recommended by Cambridge Sys-

tematics, a group that conducted an EPA-sponsored study

of Maricopa County. The excluded measures include ma-

jor expansion of mass transit, imposition of parking con-

trols, significant use of bus and carpool lanes, reductions

in bus fares, restrictions on truck travel during peak

periods, application of the Maricopa and Pima county

oxygenated fuel program and automobile emission testing

program to the entire state, elimination of waivers to the

automobile emission testing program, and adoption of

year-round daylight savings time. The Maricopa Associa-

tion of Governments noted that immediate implementa-

tion of all the measures it identified could have produced

attainment within one year.

Petitioners contend that it was arbitrary and capricious

for the EPA to approve the plans without more control

measures. The EPA contends that it properly approved

the Maricopa and Pima plans with just the three control

measures that they contain, because additional control

measures “could not be demonstrated to further accelerate

the projected attainment date.”

The EPA has, however, arbitrarily shifted from Ari-

zona the burden of demonstrating that control measures

would not accelerate the projected attainment date. An

EPA guidance document explicitly provides that each of

the eighteen measures listed in 42 U.S.C. § 7408 is pre-

sumed reasonably available; a state can reject one of these

measures Only by showing that the measures either would

not advance attainment, would cause substantial wide-

Sn a

10a

spread and long-term adverse impact, or would take too

long to implement. The document states:

[I]}f a state adopts less than all [reasonably available

control measures] and demonstrates (a) that reason-

able further progress and attainment of the [national

ambient air quality standards] are assured, and (b)

that application of all [reasonably available control

measures] would not result in attainment any faster,

then a plan with less than all [reasonably available

control measures] may be approved.

State Implementation Plans; General [P]reamble for Pro-

posed Rulemaking on Approval of Plan Revisions for

Nonattainment Areas, 44 Fed. Reg. 20,375 (April 4, 1979)

(emphasis added).

Neither the Maricopa plan nor the Pima plan contains

serious Commitment to many of the measures listed in sec-

tion 7408, including: 1) limiting portions of roads to com-

mon carriers; 2) improving transit systems with major

changes in existing facilities; 3) controlling on-street park-

ing; 4) establishing auto-free zones; 5) instituting road user

fees that discourage single occupant automobile trips; or

6) retrofitting older vehicles with emission control devices.

See 42 U.S.C. § 7408(fI(U1)(A)(v), (vi), (vil), (ix), (xiii),

(xvii). Yet Arizona has made no claim that any of the con-

trol measures that section 7408 or the Maricopa Associa-

tion of Governments identified is impracticable or unrea-

sonable in either Maricopa County or Pima County.

Furthermore, as noted above, for a nonattainment area

that qualified for deadline extension to 1987, the 1977

amendments require implementation of not only all rea-

sonably available control measures, but also any addi-

tional measures necessary to ensure timely attainment. 42

U.S.C. § 7502(b)(11)(C). If such an area failed to attain

the relevant ambient air quality standard by 1987, the

lla

EPA required implementation of “all possible measures”

and more extensive evidence to justify failure to adopt any

of the measures listed in section 7408 in order to ensure

“the most expeditious [attainment] date beyond 1987.”

Criteria, 46 Fed. Reg. 7188 (January 22, 1981). The EPA

expressly applied these requirements to nonattainment

areas that failed to meet the 1982 statutory deadline and

did not qualify for deadline extensions to 1987. Guidance

Document for Correction of Part D SIP’s For Nonattain-

ment Areas, January 27, 1984, at 32-33 [hereinafter “Part

D SIP’s for Nonattainment Areas”}.

We, therefore, conclude that the EPA arbitrarily and

capriciously found that the Ma:icopa and Pima plans pro-

vide for sufficient control measures.

Ill. THE EPA’S DECISION THAT THE MARICOPA PLAN

PROVIDES ADEQUATE CONTINGENCY AND CONFOR-

MITY PROVISION[S]

The EPA’s published guidelines require post-1982 car-

bon monoxide implementation plan revisions to contain a

contingency plan to be implemented if shortfalls in emis-

sion reductions occur during the period covered by the

plan. See Criteria, 46 Fed. Reg. 7188 (January 22, 1981)

(prescribing the policy for nonattainment extension areas).

The contingency plan must provide: (a) a list of planned

transportation measures that may adversely affect air

quality and that will be delayed while the state implemen-

tation plan is being revised, if expected emission reduc-

tions or air quality improvements do not occur; and (2) a

description of the process that will be used to determine

and implement additional transportation measures bene-

ficial to air quality that will compensate for unanticipated

shortfalls in emission reductions. /d.

The Maricopa plan contains neither of these. Petitioners

contend that the EPA arbitrarily and capriciously waived

l2a

its contingency plan requirement. The EPA contends that

its contingency plan provision applies only to nonattain-

ment extension areas. But as we note above, the EPA ex-

pressly applied its nonattainment extension area require-

ments tO nonattainment nonextension areas. See Part D

SIP’s for Nonattainment Areas, at 32-33. Indeed, it would

be anomalous for the EPA not to require as stringent

measures for delinquent areas as for areas that qualified

for extensions.

The EPA alternatively contends that each plan contains

two traffic control measures beyond those necessary to

demonstrate attainment by December 31, 1991, and that

these additional measures are the functional equivalent of

a contingency plan. We disagree. First, we held above that

the EPA erred in not requiring compliance before Decem-

ber 31, 1991. Second, the EPA concedes that the two traf-

fic control measures in question—a voluntary no-drive

day program and a minimum market share for alcohol

fuels —are of such speculative value that the EPA could

not assign them any emission reduction value. See Ap-

proval and Promulgation of Implementation Plans; Ari-

zona State Implementation Plan Revision; Maricopa

County Carbon Monoxide Plan, 53 Fed. Reg. 30,232

(August 10, 1988) [hereinafter “Approval of Maricopa

Plan”]. Programs of such speculative benefit are not the

functional equivalent of a list of specific projects that will

be delayed and a description of the specific process that

will be used to determine and implement additional trans-

portation control measures if they become necessary. We

find that the EPA has arbitrarily and capriciously waived

its requirement of a contingency plan.

The Clean Air Act explicitly requires that all federal ac-

tivities conform to Clean Air Act Implementation Plans.

42 U.S.C. § 7506(c). The EPA guidelines direct that to

l3a

assure compliance with this mandate, each implementa-

tion plan “should identify, to the extent possible, the direct

and indirect emissions associated with major federal ac-

tions... .” Criteria, 46 Fed. Reg. 7188 (January 22,

1981). The state implementation plan must contain

“{ajdministrative and technical procedures and agency

responsibilities for ensuring . . . that transportation plans,

programs and projects” will conform with the state im-

plementation plan. /d. The EPA does not dispute that the

Maricopa plan fails to meet either requirement. Peti-

tioners argue that the EPA arbitrarily and capriciously

waived these requirements. The EPA argues, however,

that we should sustain as within its discretion, its finding

that the plan sufficiently assures conformity “given the

flexibility which should be accorded [the EPA’s] practical

implementation of the [Clean Air Act]’s statutory provi-

sions.”

Again, we cannot agree. The EPA must adhere to its

own guidelines. Morton v. Ruiz, 415 U.S. 199, 235 (1974);

Service v. Dulles, 354 U.S. 363, 388 (1957). Because it is

undisputed that the Maricopa plan fails to meet either of

the EPA’s own requirements and the EPA offers no

reason for waiving those requirements, we can conclude

only that the EPA arbitrarily and capriciously approved

the plan. See /ilinois State Chamber of Commerce vy.

EPA, 775 F.2d 1141, 1147 (7th Cir. 1985).

IV. THE EPA’S DECISION THAT THE MARICOPA PLAN

PROVIDES ADEQUATE MAINTENANCE OF THE NA-

TIONAL AMBIENT AIR QUALITY STANDARDS

The Clean Air Act requires that implementation plans

provide for maintenance of national ambient air quality

standards after attainment. 42 U.S.C. § 7410(a)(2)(B).

Petitioners contend that the Maricopa provisions for

l4a

maintenance are inadequate because the plan considers air

quality only ten years into the future. The EPA required

projections only ten years into the future because it found

that projections beyond ten years are unreliable. Of

course, this finding would not have justified the EPA’s

disregard for its rules without a formal revision of the

rules in accordance with the Administrative Procedure

Act. But even assuming that the EPA’s own rule generally

requires maintenance projections twenty years into the

future applies to delinquent nonattainment nonextension

areas (which the EPA disputes), that rule allows plans to

provide maintenance projections only ten years into the

future. The rule states:

The time period analyzed shall extend at least 20

years or, if'modified under § 51.63, not less than 10

years from the date on which the Administrator iden-

tified the area.

40 C.F.R. § 451.42 (1987). Section 51.63(a) adds:

At the request of a State, or under his own initiative,

the Administrator, where he determines it appropri-

ate, may approve alternative [air quality maintenance

area] analysis and plan development procedures as

allowed under §§ 51.42, 51.44, 51.45, 51.46,

51.48(b), and 51.60(a). He may consider all relevant

factors including but not limited to air quality prob-

lems, financial and manpower limitations, adminis-

trative feasibility, and existing commitments by the

State.

40 C.F.R. § 51.63(a) (1987).

The preamble to these regulations specifically states that

one of Section 51.63(a)’s “relevant factors” is the reliability

of the maintenance projections:

The time periods will be selected by the Administra-

tor, through his Regional Administrators, consider-

lSa

ing such factors as State resources, other planning

programs that may significantly affect air quality, the

reliability of projections, and the extent of present

and potential air quality problems.

Maintenance of National Air Quality Standards —Sum-

mary, 41 Fed. Reg. 18,386 (May 3, 1976) (emphasis

added).

In this case, the EPA specifically found that projections

beyond ten years into the future “become too speculative

to be reliable.” Approval of Maricopa Plan, 53 Fed. Reg.

30,234 (August 10, 1988). Petitioners’ own contention that

traffic projections changed dramatically from February

1987 to October 1987 supports the EPA’s conclusion that

projections are quite speculative. We, therefore, cannot

say that the EPA arbitrarily or capriciously required a

maintenance projection only ten years into the future.

Vv. THE EPA’S DECISION NOT TO CONSIDER REVISED, IN-

CREASED VEHICLE TRAFFIC PROJECTIONS IN

EVALUATING THE MARICOPA PLAN

The Maricopa plan based its projection that Maricopa

County would attain the carbon monoxide ambient air

quality standard by 1991 on traffic projections made in

1984 and in February 1987. The EPA refused to consider

revised, increased vehicle traffic projections for Maricopa

County that petitioners presented during the public com-

ment period for the Maricopa plan. The EPA argues that

petitioners submitted this new data only four weeks before

the approval deadline and thus the EPA lacked sufficient

time to incorporate it into the plan. Petitioners contend

that the EPA acted arbitrarily and capriciously in failing

to consider the revised, increased vehicle traffic projec-

tions. They also contend that the EPA’s decision that the

Maricopa plan provides adequate maintenance of the na-

l6a

tional ambient air quality standards was arbitrary and

capricious because it failed to rely on the revised vehicle

traffic projections.

We do not determine whether the EPA acted arbitrarily

and capriciously in its decision not to consider the revised

traffic projections. Our holdings on the other issues in this

case require the EPA to develop a new Maricopa county

implementation plan. To develop that plan properly the

EPA will, of course, need to consider the most recent vehi-

cle traffic projections currently available. Whether, due to

time constraints, the EPA in 1988 justifiably refused to

consider the revised, increased traffic projections is now

an issue of only academic significance.

CONCLUSION

We grant the petition for review. We vacate the EPA’s

approvals of Maricopa and Pima counties’ Clean Air Act

implementation plans. We direct the EPA to disapprove

these plans and to promulgate federal implementation

plans consistent with this opinion within six months.' To

summarize, the new plans must utilize all available control

measures to attain the carbon monoxide ambient air quali-

ty standard as soon as possible. The new plans must con-

tain contingency and conformity plans in accordance with

EPA guidelines and must be based on the most recent traf-

fic projections currently available. We grant petitioners’

motion for fees and costs and direct petitioners to submit

appropriate documentation to this court.

' Arizona may, Of course, submit proposals to the EPA for its con-

sideration in developing the plans.

17a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 88-7368

ROBERTA DELANEY; GAYLE HARTMANN, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

[Filed MAY 16, 1990]

ORDER

Before: TANG, REINHARDT and WIGGINS, Circuit

Judges.

The panel has voted to deny the petition for rehearing

and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for en

banc rehearing, and no judge of the court has requested a

vote for rehearing en banc. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the suggestion

for rehearing en banc is rejected.

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CA No. 88-7368

ROBERTA DELANEY; GAYLE HARTMANN, ET AL., PETITIONERS

V.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

JUDGMENT

—

[Filed and entered March 1, 1990]

Upon Petition to Review an order of the

Environmental Protection Agency

This Cause came on to be heard on the Transcript of the

Record from the Environmental Protection Agency and

was duly submitted.

On Consideration Whereof, it is now here ordered and

adjudged by this Court, that the petition for review of the

order of the Environmental Protection Agency in this

cause be, and hereby is GRANTED.

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APPENDIX D

STATUTORY PROVISIONS INVOLVED

Section 110(c) of The Clean Air Act, 42 U.S.C. 7410(c). ,

Preparation and publication by Administrator of proposed

regulations setting forth implementation plan; transportation

regulations study and report; parking surcharge; suspension

authority; plan implementation

(1) The Administrator shall, after consideration of

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation

plan, or portion thereof, for a State if—

(a) the State fails to submit an implementation

plan which meets the requirements of this section,

(B) the plan, or any portion thereof, submitted

for such State is determined by the Administrator not

to be in accordance with the requirements of this sec-

tion, or

(C) the State fails, within 60 days after notifica-

tion by the Administrator or such longer period as he

may prescribe, to revise an implementation plan as re-

quired pursuant to a provision of its plan referred to

in subsection (a)(2)(H) of this section.

If such State held no public hearing associated with respect

to such plan (or revision thereof), the Administrator shall

provide opportunity for such hearing within such State on

any proposed regulation. The Administrator shall, within

six months after the date required for submission of such

plan (or revision thereof), promulgate any such regula-

tions unless, prior to such promulgation, such State has

adopted and submitted a plan (or revision) which the Ad-

ministrator determines to be in accordance with the re-

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quirements of this section. Notwithstanding the preceding

sentence, any portion of a plan relating to any measure

described in the first sentence of section 7421 of this title

(relating to consultation) or the consultation process re-

quired under such section 7421 of this title shall not be re-

quired to be promulgated before the date eight months

after such date required for submission.

Section 304(a) of The Clean Air Act, 42 U.S.C. 7604(a).

Authority to bring civil action; jurisdiction

Except as provided in subsection (b) of this section, any

person may commence a civil action on his own behalf —

(1) against any person (including (i) the United

States, and (ii) any other governmental instrumentali-

tt’ or agency to the extent permitted by the Eleventh

Amendment to the Constitution) who is alleged to be

in violation of (A) an emission standard or limitation |

under this chapter or (B) an order issued by the Ad-

ministrator or a State with respect to such a standard

or limitation,

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform any

act or duty under this chapter which is not discretion-

ary with the Administrator, or

(3) against any person who proposes to construct

or constructs any new or modified major emitting

facility without a permit required under part C of

subchapter I of this chapter (relating to significant

deterioration of air quality) or part D of subchapter I

of this chapter (relating to nonattainment) or who is

alleged to be in violation of any condition of such per-

mit.

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The district courts shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the par-

ties, to enforce such an emission standard or limitation, or

such an order, or to order the Administrator to perform

such act or duty, as the case may be. ‘

Section 307(b) of The Clean Air Act, 42 U.S.C. 7607(b).

Judicial review

(1) A petition for review of action of the Administra-

tor in promulgating any national primary or secondary

ambient air quality standard, any emission standard or re-

quirement under section 7412 of this title, any standard of

performance or requirement under section 7411 of this ti-

tle, any standard under section 7521 of this title (other

than a standard required to be prescribed under section

7521(b)(1) of this title), any determination under section

7521(b)(5) of this title, any control or prohibition under

section 7545 of this title, any standard under section 7571

of this title, any rule issued under section 7413, 7419, or

under section 7420 of this title, or any other nationally ap-

plicable regulations promulgated, or final action taken, by

the Administrator under this chapter may be filed only in

the United States Court of Appeals for the District of

Columbia. A petition for review of the Administrator’s ac-

tion in approving or promulgating any implementation

plan under section 7410 of this title or section 7411(d) of

this title, any order under section 7411(j) of this title,

under section 7412(c) of this title, under section 7413(d)

of this title, under section 7419 of this title, or under

section 7420 of this title, or his action under section

1857c-10(c)(2)(A), (B), or (C) of this title (as in effect be-

fore August 7, 1977) or under regulations thereunder, or

any other final action of the Administrator under this

chapter (including any denial or disapproval by the

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Administrator under subchapter I of this chapter) which is

locally or regionally applicable may be filed only in the

United States Court of Appeals for the appropriate cir-

cuit. Notwithstanding the preceding sentence a petition for

review of any action referred to in such sentence may be

filed only in the United States Court of Appeals for the

District of Columbia if such action is based on a deter-

mination of nationwide scope or effect and if in taking

such action the Administrator finds and publishes that

such action is based on such a determination. Any petition

for review under this subsection shall be filed within sixty

days from the date notice of such promulgation, approval,

Or action appears in the Federal Register, except that if

such petition is based solely on grounds arising after such

sixtieth day, then any petition for review under this

subsection shall be filed within sixty days from the date

notice of such promulgation, approval, or action appears

in the Federal Register, except that if such petition is based

solely on grounds arising after such sixtieth day, then any

petition for review under this subsection shall be filed

within sixty days after such grounds arise.

ve US. GOVERNMENT PRINTING OFFICE 1990— 262-203/20104