Petition for Writ of Certiorari — Environmental Protection Agency v. Coalition for Clean Air

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: | OFFICE OF THE CLERK |

Iu the Supreme Court of the Unites Stara—

OCTOBER TERM, 1992

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL., PETITIONERS

COALITION FOR CLEAN AIR, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH W. STARR

Solicitor General

VICKI A. O’MEARA

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

THOMAS G. HUNGAR

Assistant to the Solicitor General ~

DAVID C. SHILTON

KAREN L. EGBERT

Attorneys

Department of Justice

Washington, D.C. 20530

202) 514-2217

RAYMOND B. LUDWISZEWSKI

Acting General Counsel

Environmental Protection Agency

Washington, D.C. 20460

QUESTION PRESENTED

Whether, despite Congress’s determination that the de-

velopment of local air pollution control measures under

the 1990 Amendments to the Clean Air Act is initially

the responsibility of State and local governments, EPA is

required to promulgate federal air pollution control plans

for major urban areas in California because EPA found

in 1988 that California had failed to meet requirements

of the pre-1990 Act, even though those requirements were

later repealed by the 1990 Amendments and replaced with

new requirements that California has not yet had the op-

portunity to meet.

PARTIES TO THE PROCEEDINGS BELOW

The appellants before the court of appeals in No. 91-

55383 were the Coalition for Clean Air and Sierra Club,

Inc. The appellant before the court of appeals in No. 91-

95386 was the South Coast Air Quality Management

District (SCAQMD). The appellees in both cases were

the United States Environmental Protection Agency

(EPA), William K. Reilly, Administrator, Daniel G.

McGovern, Regional Administrator, and David P. Howe-

kamp, Director, Air and Toxics Division, EPA Region IX.

The Southern California Association of Governments

intervened in the court of appeals in support of EPA.

The Environmental Council of Sacramento and Sierra

Club, Ine. participated in the court of appeals as amici

curiae in support of the appellants.

TABLE OF CONTENTS

Page

Opinions below san 9B Dd es seal pbicdemectees ]

Jurisdiction : : 1

Statutory provisions involved 2

Statement 2

Reasons for granting the petition... ieee 10

I en. Talal sioteds OSA REN EOC ANA RNS 27

Appendix A la

Appendix B ; a ere erecne 35a

Appendix C 44a

Appendix D ; 45a

TABLE OF AUTHORITIES

Cases:

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

1987) IAT Cees 5

Arkansas v. Oklahoma, 112 S. Ct. 1046 (1992) 12

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) 19

City of Santa Rosa v. EPA, 584 F.2d 150 (9th Cir.

1976) he Ae eh ae ee bE: 3

Crandon V. United States, 494 U.S. 152 (1990) 15

Delaney V. EPA, 898 F.2d 687 (9th Cir.), cert.

denied, 111 S. Ct. 556 (1990) . 26

E’nvironmental Council of Sacramento v. EPA,

Civ. No. S-87-420 EJG (E.D. Cal. Dec. 2, 1991),

aff'd, No. 92-15293 (9th Cir. July 9, 1992) 11

Gwaltney of Smithfield, Inc. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1987) , M 14

King v. St. Vincent’s Hospital, 112 S. Ct. 570

(1991) ESSE TST RO ete sl Bee 15

National Ass’n of Greeting Card Publishers v.

United States Postal Serv., 462 U.S. 810 (1983) 21

National Railroad Passenger Corp. v. Boston &

Maine Corp., 112 S. Ct. 1894 (1992)... 19

(111)

Cases—Continued: Page

North Haven Bad. of Education v. Bell, 456 U.S.

SE EE Sica eer ree 21

Russello Vv. United States, 464 U.S. 16 (1983). 20

Rust v. Sullivan, 111 S. Ct. 1759 (1991) . 12,20

Train ¥. NRDC, 421 US. 60 (1076) ................-...--... 18

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) 19

United States v. Nordic Village, 112 S. Ct. 1011

fC) _ ; SORE Pee 2S reC ay a 19

United States v. Wilson, 112 Ss. Ct. 1351 (1992). 14

Statutes and regulations:

Clean Air Act, 42 U.S.C. 7401 et seq.:

§ 101 (a) (3), 42 U.S.C. 7401 (a) (3) (Supp. II

1990) .. 18

$ 101(a) (4), 42 U.S.C. 7401 (a) (4) © te 18

§ 109 (a) (2), 42 U.S.C. 7409 (a) (2) - 2

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

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

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

(E) (i) (Supp. I1 1990) . = » 23

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

6 110(e), 48 U.S. TROIS) .......-005..05.00<.-.. 20

§$ 110(c) (1), 42 U.S.C. 7410(c) (1) - £, 5, 7, 8,9

§ 110(c) (1), 42 U.S.C. 7410(c) (1) (Supp. II

| BRR Renner, Hern Lene sO ie Mackie 14, 15, 20

$ 110(c) (1) (A), 42 U.S.C. 7410(c) (1) (A)

SR iE NN ooo ace eek reneashecceacskanssueasen 7,15

§ 110(c) (1) (B), 42 U.S.C. 7410(c) (1) (B)

CEI. EE EDO) nc ceniscccnconrssss. 7,8, 13,15

§ 110(k) (1), 42 U.S.C. 7410(k) (1) (Supp. II

UI ais aece cee a enw ee le 25

§ 110{k) (1) (A), 42 U.S.C. 7410 (k) (1) (A). 7, 15

Eek bse Fe, SRR er ere aees 4

$$ 171-193, 42 U.S.C. 7501-7515 (Supp. II

PI kisah abd sneeta nas saseienhcacaia csi tatteatclicabsaaats ci somatic 6, 16

I I I iS cs ovcaceecnieaiion 6

Ber ti ye B88 Ee. L ) et 5,11

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

Statutes and regulations—Continued: Page

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

§ 172 (b), 42 U.S.C. 7502 (b) a 4

§ 176(a), 42 U.S.C. 7506 (a)... 7 4

$ 179, 42 U.S.C. 7509 (Supp. IT 1990) 7

$181 (a), 42 U.S.C. 7511(a) (Supp. I 1990). 6

§ 181 (a) (1), 42 U.S.C. 7511(a) (1) (Supp. I

EDR ee RCS Ree 1.7 6, 16

§ 181 (c) (2), 42 U.S.C. 7511(c) (2) (Supp. 1]

1990) 23

§ 181(e), 42 U.S.C. 7511 (e) (Supp. II 1990). 23

S$ 182, 42 U.S.C. 7511a (Supp. IT 1990) 6

S$ 182(c) (2), 42 U.S.C. 7511a(c) (2) (Supp.

II 1990) . ith sveuhticetedpsobauanekie see 7

§S 182(e), 42 U.S.C. 7511a(e) (Supp. IT 1990) . 16

§$ 187(a) (1), 42 U.S.C. 7512a(a) (1) (Supp.

1 Se eee 6

§ 187, 42 U.S.C. 7512a (Supp. Tl 1990) 6

$ 187(a) (7), 42 U.S.C. 7512a(a) (7) (Supp.

IT 1990) 6

S 187(b) (1), 42 U.S.C. 7512a(b) (1) (Supp.

IIT 1990) pernareeckctueleeaes 6

§ 193, 42 U.S.C. 7515 (Supp. IT 1990) 7,9,17

S§ 202 et seq., 42 U.S.C. 7521 et seq. (Supp. II

Ro, eee 18

§ 302(y), 42 U.S.C. 7602 (y) (Supp. Tl 1990) 16

§ 304(a) (2), 42 U.S.C. 7604 (a) (2) 5

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

91-604, 84 Stat. 1676 fon Renee 2

Clean Air Act Amendments of 1990, Pub. L. No.

101-549, 104 Stat. 2422-2493 mn 6

40 C.F.R. 50.9 (1980) Ai ate Serer, 2

40 C.F.R. (1992) :

Sections 81.300 et seq.

Section 81.305

42 C.F.R. (1972) .

Section 410.8

Section 410.9

Cal. Code Regs. tit. 17, §§ 94500- 94517

AINNN AH

Miscellaneous: Page

136 Cong. Rec. (1990) :

mp. BERTTE (GREY OG. BAG BID vvsccccsnvnsncnesstsccccccssinss 20

p. H2887 (daily ed. May 23)... ae 20

p. $16,969 (daily ed. Oct. 27) -.......-..... een 21

Pp. BIG STO Caalip OG. Oct. BF) ......00005ccssnesccseeesses 9,21

p. $17,237 (daily ed. Oct. 27) -................... aboceeale 21

G1 Fred, Tite, Ge Ce aii sdekdsecstacececctcnen a . 8,24

43 Fed. Reg. (1978) :

i: SEINE 32. shear eaiacreaeleauecueuseenes tan mmaaaeae Sane 4

i TINUED a vcarlasakehanninnicdeoscaccaaeunnaanebaiaeaadon te aameaasane 4

47 Fed. Reg. (1982) :

i: SUNIL vedesdcankccnsiavansantieesguecencenpetlaasepantaieeaieneed 4

i TI IT icskissns cockchekosndnchshaccaseumascceaaeaniaaaacere ds 4

GD Fred, Time, GOT CAGED a inicsencvcscnceccisicnssvcecscmesecnens ss 4

53 Fed. Reg. (1988) :

Si FI &ssdsn'datninancceasncul ndecesaiiasaemamaaatec meee 5

is SIE Seniscendcuicn deve shcecscstatnece vet oan ...8, 22, 24

a SIND i cdaica csies Gctecescombis incessant 22

i, I aoe sn nastics eds uence aes 24

i, SIE wicdecccncnnaeccssoctsiamaees cccasquaabeuaben eanentaenee 3

Wis GI POI casas ccsiveexncouaseeckicncuccbeavakekeaseeenaaeenain meee 22

55 Fed. Reg. (1990) :

Wis SIRAIIIED ines 0x vsnsavsssdtnosomsscueeaneniaaeaunn tanec tinaaeraeann 5, 22

ee Fauna see ishinkiniaieneastdaceamuamee cane ae 22

Bi TIE ossnsieeeasascrestascoueess ee naka nee eee 25

i, Te PIII acs catinavsrctbecencaantarees SEIS NOPE OD Ne 25

Sh; SEY Nosiccsyani dexicunbenancceatencoecaccuets 25

OD FE cee cltticcansse cea eee Porree nego 25

p. 36,503 _.... Sos teniacinieakenmen aca ae aaa 25

pp. 36,532-36,538 ............................ aapae Det Fe es 25

56 Fed. Reg. (1991) :

FR peer nmn TT ARIE Lene Ge ASSET ae - 20

ic TE inkeuictecsices ESmrernere Teens. SSA Me eae re 5

Rf pment naE eee EEE 6

SIR WA i. sacciénisnaiecscanealsieenidghdsieamet aie 6

_—

VII

Miscellaneous—Continued: Page

57 Fed. Reg. (1992) : |

p. 909 ...... 5

NEE Riri CREAT REE ERR cst 26

H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977) 3, 24

Legislative History of the Clean Air Act Amend-

ments of 1977 (1978): |

i Se Ral cE aI Moser.

MN a Se a ae oe et ee _ 8,24

In the Supreme Court of the United States

OCTOBER TERM, 1992

No.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL., PETITIONERS

V .

COALITION FOR CLEAN AIR, 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 the Environmental]

Protection Agency (EPA) and William K. teilly, Ad-

ministrator, et al., petitions for a writ of certiorari to

review the judgment of the United States Court of Ap-

peals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1la-

34a) is reported at 971 F.2d 219. The opinion of the dis-

trict court (App., infra, 35a-43a) is reported at 762 F.

Supp. 1399.

JURISDICTION

The judgment of the court of appeals was entered on

July 1, 1992. A petition for rehearing was denied on

September 11, 1992. App., infra, 44a. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATUTORY PROVISIONS INVOLVED

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

7401 et seg., as amended, are reproduced at App., infra,

45a-47a.

STATEMENT

1. The Clean Air Act establishes a comprehensive pro-

gram for controlling and improving the nation’s air

quality, through a combination of state and federal reg-

ulation. The basic allocation of state and federal roles

in the present Act was established by the Clean Air Act

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

Congress charged the Administrator of EPA with devel-

oping “national * * * ambient air quality standards”

(NAAQS). Section 109(a) (2), 42 U.S.C. 7409(a) (2).

Congress then required each State to develop and submit

to EPA a state implementation plan (SIP) to achieve

and maintain the NAAQS within the State. Section 110

(a) (1), 42 U.S.C. 7410(a) (1). The Administrator was

required to determine whether each SIP met certain

statutory requirements, including the attainment of ap-

plicable “primary” NAAQS, “as expeditiously as prac-

ticable” but generally not later than three years from

the date of approval of the SIP. Section 110(a) (2) (A),

42 U.S.C. 7410(a) (2) (A). If a State failed to submit

a SIP, or if the Administrator determined that a SIP

failed to meet the Clean Air Act’s requirements, the Ad-

ministrator was required to promulgate a federal imple-

mentation plan (FIP) for the State within six (or in

some cases eight) months. Section 110(c) (1), 42 U.S.C.

7410(¢) (1).

In the early 1970s, EPA established NAAQS for photo-

chemical oxidants (ozone) and carbon monoxide (CQO).'

The Los Angeles area was one of the areas that needed a

1See 42 C.F.R. 410.9, 410.8 (1972). EPA changed the chemical

designation of the photochemical oxidants standard to ozone in

1979. 40 C.F.R. 50.9 (1980).

SIP to attain those standards. California failed to pro-

duce an adequate SIP and, consequently, EPA was re-

quired to promulgate a FIP for the area. See generally

City of Santa Rosa v. EPA, 534 F.2d 150, 154 (9th Cir.

1976) ‘upholding the promulgated FIP). To attain the

standards, substantial emission reductions were required.

After several attempts to find more palatable solutions,

EPA reluctantly issued a FIP that called for, among

other things, massive gasoline rationing and drastic trans-

portation control measures. Jbid.; see 53 Fed. Reg.

49.494, 49,498 (1988). Public outrage led EPA to with-

draw the plan just as Congress was in the midst of efforts

to amend the Act. See 41 Fed. Reg. 45,565 (1976).

In response to widespread state failures to produce

adequate SIPs and the public uproar over FIPs that EPA

had promulgated to address those failures, Congress over-

hauled the Clean Air Act in 1977. The committee report

accompanying the House of Representatives bill to revise

the Act recognized that FIPs were a crude tool for rem-

edying state failures under the 1970 Act, and concluded

that the wisest course for the new Act was to adopt “an

approach that is intended to involve the least possible in-

trusion into State affairs consistent with the primary task

of protecting public health.” H.R. Rep. No. 294, 95th

Cong., Ist Sess. 288 (1977), reprinted in 4 Legislative

History of the Clean Air Act Amendments of 1977, at

2748, 2755 (1978) |hereinafter Leg. Hist.]. The Report

stressed the need for States to adopt and implement their

own transportation control programs, stating that “as a

practical matter, State and local governments are in a

better position than EPA to resolve those pollution prob-

lems, which involve millions of motor vehicles.” Jbid.*

“Similarly, the committee report on the Senate bill to amend the

Act (S. 252) recognized the substantive and practical differences

between SIPs and FIPs when it stated that the bill had been de-

signed to take into account that “[t]he Federal Government does

not have and will not have the resources to do an effective job of

Accordingly, the 1977 Amendments maximized pressure

on the States to develop adequate plans. The Amendments

created a new concept, “nonattainment areas”—areas

where air quality falls short of NAAQS—and _ required

SIPs for such areas to satisfy stringent new require-

ments set forth in the new Part D of the statute; failure

to meet those requirements would result in imposition of

draconian economic sanctions on the affected areas. Sec-

tions 110/a)(2)(1), 171, 172(b), 176(a), 42 U.S.C.

7T410(a) (2) (0), 7501, 7502(b), 7506(a). Congress ex-

tended the deadline for attainment of the primary NAAQS

in nonattainment areas to December 31, 1982. Section

W72(ai(l), 42 U.S.C. 7502(a)(1). Further extensions

were permitted for ozone and carbon monoxide, but only

if the State demonstrated that attainment was not pos-

sible by 1982, despite the implementation of all reason-

ably available measures, and that attainment would be

achieved “as expeditiously as practicable but not later

than December 31, 1987.” Section 172(a) (2), 42 U.S.C.

ThHOZ2 (ar (2).

2. In 1978, the EPA Administrator designated the

South Coast Air Basin in California (comprising most of

Los Angeles, San Bernardino, Orange and Riverside

Counties) as nonattainment areas for carbon monoxide

and ozone. See 43 Fed. Reg. 8962, 8964 (1978). In 1979,

California submitted its SIP for the South Coast area;

EPA. with limited exceptions, approved that SIP. 47

Fed. Reg. 28,617 (1982). California also requested, and

KPA approved, an extension of the statutory attainment

date for the South Coast from 1982 to December 31, 1987.

See 47 Fed. Reg. 50,864 (1982). As required, the State

submitted updated 1982 ozone and CO SIPs for the South

Coast area. In 1984, EPA approved parts of the 1982

South Coast plans. 49 Fed. Reg. 30,300 (1984).

running the air pollution control programs of the States.” S. Rep.

No. 127, 95th Cong., Ist Sess. 10 (1977), reprinted in 3 Leg. Hist.

1384.

On November 3, 1987, the Ninth Circuit vacated EPA’s

1984 partial approval of the 1982 South Coast SIPs.

Abramowitz V. EPA, 832 F.2d 1071 (9th Cir. 1987). On

January 22, 1988, EPA disapproved the 1982 South Coast

plans on the ground that, inter alia, they failed to dem-

onstrate attainment of the NAAQS by the December 1987

tatutory attainment date, as required by Section 172(a)

of the Act. See 53 Fed. Reg. 1780 (1988) ."

In February 1988, two environmental groups brought

this case under the citizen suit provision, Section 304

' of the Act, 42 U.S.C. 7604(a)(2). to compe!

IPA to promulgate ozone and. carbon monoxide FIPs

for the South Coast area pursuant to Section 110(@) (1),

12 US.C. 7410(e) (1). In March 1989, EPA entered

into a settlement agreement which, after court-approved

modifications, obligated EPA to promulgate federal plans

in final form by February 28, 1991. The settlement agree-

ment allowed EPA to seek vacation of its FIP obligations

if amendments to the Act then pending in Congress ob-

viated the duty to prepare a FIP. EPA issued a proposed

FIP in September 1990. 55 Fed. Reg. 36,458 (1990).

the years leading up to 1990, it had become in-

‘reasingly clear that several areas of the country with

(Aa) lz

evere air pollution problems, including the Los Angeles

While the South ¢ t has not had a plan demonstrating attain

ment of the y tional standards, it has had in place a eries ( f en

! i] overning en Ol tron i Vice } r

tional < Q 1 South ¢ t Air Q { Ia ‘

1) R 1175 mat ducts , 1153 mme a h ke) es

1121 vater heats 1150 (landfil In addition, th

{ r \ R I? d } id d new n re l

) } a re wit} ( ect QO thoce

rt th the re ments of the Califo: Ch Air

see, .9., 97 Fed. Reg. 909 (1992) (proposed waiver of federal

, ‘ ) a » ( } ry ‘y ty ont Vior r

w ‘ nd; d fo? ryt ion j rn) -< t er ft oF

Reg. 45,866 (199] ed r pre tion f I ! !

e and vel } standard Se

{ e Re t 17 1590-94517 f n standards for s

roduct

area, could not possibly meet the ambitious requirements

of the 1977 Amendments without extreme economic dis-

location. On November 15, 1990, the Clean Air Act

Amendments of 1990 were enacted. Pub. L. No. 101-549,

104 Stat. 2422-2423. Among other things, Congress com-

pletely revised the Part D nonattainment provisions of

the Act. In so doing, Congress repealed the provisions of

Section 172 that had required SIPs for the South Coast

area to demonstrate attainment by December 31, 1987.

Those provisions, of course, had formed the basis for

EPA’s disapproval of the California SIP submissions, and

thus the statutory justification for that disapproval was

eliminated by the 1990 Amendments. Congress replaced

those provisions with a detailed scheme of new require-

ments and extended deadlines specifically applicable to

ozone and CO nonattainment SIPs. Sections 171-193, 42

U.S.C. 7501-7515.

In particular, the 1990 Amendments established five

classifications of ozone nonattainment areas depending on

the degree of severity of each area’s ozone problem—

ranging from “marginal” to “extreme’—and two classi-

fications of CO nonattainment areas. The Amendments

also set new, extended deadlines for the attainment of the

primary NAAQS for each classification. 42 U.S.C.

7T51l(a)(1) and 7512(a)(1) (Supp. IIT 1990). Con-

gress also imposed specific and increasingly rigorous re-

quirements for Part D SIPs, depending on the area’s

nonattainment classification, with new deadlines, ranging

from immediately to six years, for submitting various

components of the plans to EPA. 42 U.S.C. 751la, 7512a

(Supp. II 1990).

Among those requirements are provisions that Con-

gress designed exclusively for the Los Angeles area, which

is the only area in the country that is classified as “ex-

treme” for ozone.‘ California must submit by November

4+See Section 181(a), 42 U.S.C. 7511(a) (Supp. II 1990); 40

C.F.R. 81.300 et seg. (1992) ; 40 C.F.R. 81.305 (1992) ; 56 Fed. Reg.

56,694, 56,726 (1991).

15, 1994, a demonstration that the South Coast’s ozone

SIP will achieve attainment by December 31, 2010. 42

U.S.C. 751la(e) (2) and (e) (Supp. II 1990). A earbon

monoxide attainment demonstration for the South Coast

must be submitted by November 15, 1992. 42 U.S.C.

7o1l2a(a) (7) and (b) (1) (Supp. II #990).

In addition, the 1990 Amendments substituted a new

version of Section 110(¢) (1) for the previous version

of that provision. The amended version states that the

Administrator “shall promulgate a Federal implementa-

tion plan at any time within 2 years after the Admin-

istrator * * * disapproves a [SIP] submission in whole

or in part.” 42 U.S.C. 7410(@) (1) (B) (Supp. II 1990).

NPA’s FIP obligation also arises where the Adminis-

trator finds that a State has failed to make a “required

submission” or that the plan or plan revision submitted

by a State does not meet the new requirements for plan

submissions established under 42 U.S.C. 7410(k) (1) (A).

42 U.S.C. 7410(¢) (1) (A) (Supp. II 1990). A State may

not, however, pass. the planning obligation on to EPA

Without penalty. If a State fails to make a required sub-

mission, or if EPA disapproves a submission, EPA must

impose either a cut-off of highway funds or stringent

emission reductions on new or modified sources, 42 U.S.C.

7909 (Supp. IT 1990).

The new amendments also include a general savings

clause stating that “[n]o control requirement in effect,

or required to be adopted by an order, settlement agree-

ment, or plan in effect before November 15, 1990, in any

area Which is a nonattainment area for any air pollutant

may be modified after November 15, 1990, in any manner

unless the modification insures equivalent or greater emis-

sion reductions of such air pollutant.” 42 U.S.C. 7515

(Supp. I1 1990).

4. EPA concluded that the 1990 Amendments’ generic

savings clause did not preserve its obligation to promul-

gate FIPs for the South Coast, because the Agency had

never agreed to promulgate any specific “control re-

quirements” as part of its agreement to develop FIPs for

the area. Moreover, the legislative history of the savings

clause indicated that Congress did not intend EPA to

finalize FIPs for the Los Angeles area. Additionally, the

language of revised Section 110(¢)(1) and of the new

Part D provisions, which direct States to develop SIPs

meeting new requirements and deadlines and to submit

the various SIP components to EPA on specific schedules,

indicates that EPA’s obligation to promulgate FIPs would

arise only upon future disapprovals of those newly sub-

mitted SIPs. EPA accordingly asked the district court to

vacate the settlement agreement.

The district court agreed with EPA. App., infra, 35a-

43a. The court found the language of Section 110(c) to

be ambiguous, and concluded that EPA’s construction is

consistent with the structure of the revised Act and the

“obvious policy that the States are encouraged to take

the lead, with the potential FIP to be the stick that drives

them.” App., infra, 38a. Accordingly, the court found

EPA’s interpretation entitled to substantial deference.

The court also found that the language and history of

the savings clause support EPA’s interpretation.

5. A divided panel of the Ninth Circuit reversed. App.,

infra, la-34a. Although the majority recognized that Sec-

tion 110/c) (1) had been revised in several particulars

by the 1990 Amendments, it held that the “plain” lan-

guage of amended Section 110(¢) (1) (B), which requires

EPA to promulgate a FIP within two years after it “dis-

approves” a SIP, applies to pre-Amendment disapprovals.

App., fra, 12a-13a. Thus, the court ruled that new Sec-

tion 110(¢) (1) (B) operates retroactively to retain EPA’s

preexisting FIP obligation, even though the statutory

provisions forming the basis for that obligation have been

repealed. In reaching this conclusion, the court declined

to indicate whether the requirements of the old law or the

1990 Amendments would govern the contents of this

FIP. App., infra, 13a.

The majority recognized that the States have new SIP

obligations under the 1990 Amendments, but it reasoned

that no “anomaly” would result from requiring EPA to

impose a FIP before a State has had an opportunity to

address the new criteria, because the State could propose

“new measures as revisions to the FIP.” App., infra,

13a-14a. Thus, the court concluded that interpreting the

amended Act to preserve EPA’s obligation to promulgate

a FIP “will not have the effect of preempting state plan-

ning or the new state submissions that are required under

the 1990 Amendments.” Jd. at 19a.

Having found the language of Section 110(c) (1) to be

unambiguous, the majority refused to defer to EPA’s

interpretation of the statutory provisions. App., infra,

20a. Moreover, the majority indicated that deference

would not be due in any event, because the Agency’s con-

struction contradicted views stated in a letter from the

EPA Administrator to the House of Representatives writ-

ten six months before the 1990 Amendments were finally

enacted. Jd. at 20a-2la. The majority also declined to

give weight to the language and legislative history of the

savings clause, 42 U.S.C. 7515. Jd. at 16a-20a.°

Judge Noonan dissented. He pointed out that Section

110(c) has been significantly revised by the 1990 Amend-

ments and that its language is most logically read to

refer to future disapprovals of SIPs, not past disap-

provals. App., infra, 26a-29a. He also stressed that the

SIP disapprovals in this case had been based on provi-

sions of the 1970 and 1977 Acts that have been repealed

by the 1990 Amendments, and observed that “{i]t would

“ * * make nonsense of the new law to hold that the old

* This history included a statement by the chairman of the con-

ference committee indicating that “[wle do not intend that this

savings clause requires EPA to finalize the Federal Implementation

*lan in California and preempt the states and regional air quality

planning that is ongoing in the Los Angeles area and will otherwise

be required under this legislation.” 136 Cong. Rec. $16,970 (daily

ed. Oct. 27, 1990).

disapproval must continue in effect despite the relaxation

of the standards effected by the 1990 changes.” App.,

infra, 3la. He also stated that imposing a federal plan

at this point, in the absence of any showing of a viola-

tion of current requirements, reverses the Act’s express

preference for granting States the initial role in con-

trolling air pollution. Jd. at 3la-32a.

REASONS FOR GRANTING THE PETITION

This case presents questions of exceptional practical

importance concerning the division of responsibilities be-

tween the States and the federal government under the

Clean Air Act, the proper interpretation of the Clean Air

Act Amendments of 1990, and the proper role of a re-

viewing court in interpreting important new statutory

provisions. The court of appeals’ decision reflects a mis-

application of this Court’s precedents governing statutory

construction and deference to agency interpretations. It

thereby significantly undermines the federal-state balance

embodied in the Act, dramatically alters the manner of

implementation Congress has chosen for the new Amend-

ments, and wholly ignores the statutory context in which

the Act’s air quality goals are to be achieved. As a prac-

tical matter, the court of appeals’ decision threatens to

result in widespread inconvenience and hardship for mil-

lions of California citizens and substantial dislocation of

California’s economy. Those serious consequences, which

are contrary both to Congress’s express intention and to

EPA’s reasonable interpretation of the Amendments,

should not be visited upon millions of persons without

review by this Court of the legal disagreement that has

been manifested by the various federal judges who have

considered the matter.

The Clean Air Act Amendments of 1990 represent a

legislative compromise between Congress’s desire for

cleaner air and its concern for ensuring future economic

growth and well being. In the 1990 Amendments, Con-

gress made a very clear policy choice—to favor state and

local planning, followed by federal planning only after

the state and local planning is found deficient—and pre-

scribed the precise timing and manner in which air qual-

ity standards in each region should be achieved by the

responsible state and local authorities. The panel’s deci-

sion turned that policy choice on its head by misconstru-

ing and ignoring the statutory context of the Act’s provi-

sions on state and federal plans. The majority opinion

preserves EPA’s pre-1990 obligation to promulgate a FIP

for the Los Angeles area merely because California’s

pre-1990 SIPs failed to comply with certain requirements

of the pre-1990 Act, requirements that Congress elimi-

nated in the 1990 Amendments.‘

As a result of the lower court’s decision. EPA has

been made initially and primarily responsible for devel-

oping air pollution control strategies for a large part of

California, and has been precluded from giving the state

and local authorities their rightful opportunity to make

the first attempt to assemble the mix of pollution controls

they believe are appropriate to achieve the huge emission

reductions necessary—an opportunity they would other-

wise have under the 1990 Amendments.’ In distorting

" Specifically, California failed to submit a plan showing attain-

ment of the ozone and carbon monoxide standards by 1987, a

requirement based on Section 172(a) of the pre-1990 Act. In the

1990 Amendments, Congress deleted this deadline from Section

172(a) and replaced it with new provisions that do not preserve any

element of the State’s prior failures.

‘ The result here also governs EPA’s FIP obligations in two other

areas of California as well: Sacramento and Ventura County. In

Environmental Council of Sacramento v. EPA, Civ. No. S-87-420

EJG (E.D. Cai. Dec. 2, 1991), aff'd, No. 92-15293 (9th Cir. July 9,

1992), EPA moved to vacate a settlement agreement requiring

it to promulgate an ozone FIP for the Sacramento area. After the

district court denied EPA’s motion, the parties negotiated a modifi-

cation to the settlement agreement whereby EPA agreed to publish

a proposed FIP within four months of the entry of the mandate

the statutory language and structure to achieve this re-

versal of the state and federal planning roles under the

Act, the court of appeals also misapplied well-established

principles concerning statutory construction and defer-

ence to agency interpretation. See Arkansas v. Oklahoma,

112 S. Ct. 1046, 1060-1061 (1992); Rust v. Sullivan, 111

S. Ct. 1759, 1769 (1991).

The practical consequences of the panel’s errors are

enormous. The Los Angeles area has the worst air qual-

ity in the nation. Any plan to attack and solve the area’s

“extreme” ozone problem necessarily will have pervasive

deleterious impacts on most aspects of that region’s econ-

omy—an economy that each year produces goods and

services valued at more than a quarter of a trillion dol-

lars—and on the lives of the thirteen million people

living there. The only type of complete regulatory plan

that EPA has the means to promulgate and implement

in the area would necessarily consist of a limited number

of intrusive measures that would indiscriminately force

huge cutbacks in emissions from most mobile, stationary,

and area sources. As we explain below, extreme measures

such as gas rationing and “no drive” days are the types

of limited tools with which EPA must work,

by the Ninth Circuit in the instant case, and a final FIP six months

thereafter. EPA appealed the judgment in the Sacramento case,

and the parties agreed to submit that appeal to the panel which

was already considering the instant case. That panel affirmed the

Sacramento judgment in a brief order dated July 9, 1992, which

cited its July 1, 1992 decision in the instant case. Judge Noonan

again dissented. We are filing a petition for a writ of certiorari

in that case concurrently with the filing of this petition.

Under an agreement in a parallel case involving EPA’s obligation

in Ventura County, Citizens to Preserve the Ojai v. EPA, No. CV

88 00982 HLH (C.D. Cal. Mar. 13, 1991), EPA’s obligation to

promulgate a FIP is also governed by the result here.

8 In addition, the two million residents and the economies of the

Sacramento and Ventura County areas—regions with a combined

annual domestic product in excess of 40 billion dollars—will be

similarly affected.

By contrast, the state and local authorities have avail-

able the authority and resources to formulate, adopt, and

implement a much more nuanced plan containing many

measures that EPA lacks the authority or the practical

ability to implement (such as local land-use planning,

publie transportation, and traffic control measures).

Thus, if EPA is forced to promulgate a FIP before the

State has had its chance to produce a SIP satisfying the

requirements of the 1990 Amendments, the result will be

to require the residents and businesses of the affected

areas to take actions that may be either unnecessary un-

der, or even incompatible with, the measures that the

state and local authorities will ultimately require. This,

in turn, will cause widespread confusion and economic

waste for an indeterminate period of time, and is likely

to impede attainment of the air -quality goals set by

Congress.

This disruption could be avoided entirely if, as the

statute requires, the State were given the initial oppor-

tunity to formulate its plan under the 1990 Amendments.

and EPA were only then called on to produce a FIP if

necessary to fill gaps in areas in which the State had

failed to satisfy fully its obligations under the Act. Re-

versing the court of appeals’ misconstruction of the stat-

ute and avoiding the disruption that would result from

the panel’s decision are matters of such importance to

faithful implementation of the congressional plan that

this Court’s review is warranted.

1. The majority’s ruling conflicts with fundamental

principles concerning the proper interpretation of statu-

tory provisions.

a. The critical language here, found in Section

110(¢c)(1)(B), states that the Administrator “shall

promulgate a Federal implementation plan at any time

within 2 years after the Administrator * * * disapproves

a State implementation plan submission in whole or in

part.” 42 U.S.C. 7410(¢e) (1) (B) (Supp. II 1990) (em-

phasis added). The fact that this directive is phrased in

the present tense is strong evidence that Congress did

not intend the obligation to apply retroactively to past

disapprovals.

The court of appeals nonetheless applied Section

110/¢c) (1) to EPA’s past disapproval of the State’s SIP,

noting that “|t]he present tense is commonly used to

refer to past, present, and future all at the same time.”

App., infra, lla. Contrary to the majority’s approach,

however, this Court recently has emphasized that ‘“Con-

gress’ use of a verb tense is significant in construing

statutes.”” United States v. Wilson, 112 S. Ct. 1351, 1354

(1992). See Gwaltney of Smithfield, Inc. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 59 (1987). Congress could

easily have said “has disapproved” if it had meant pre-

Amendment disapprovals to trigger the duty to impose

FIPs.

b. EPA’s reading of the Act is further reinforced by

the fact that the 1990 version of Section 110(¢) (1) gives

EPA two years (rather than the six or eight months

available under the previous version of the provision) in

which to develop a FIP. Congress obviously concluded

that this additional time was necessary for the complex

task of completing a FIP. Yet under the majority’s retro-

active application of the 1990 Amendments, the two-year

period established by the new Section 110(e) (1) began

to run when EPA disapproved the State’s SIP in 1988.

As a result, the two-year period established by Congress

in November 1990 ran out in January 1990—ten months

before the 1990 Amendments were even enacted. In

short, even though Congress clearly intended to increase

the amount of time available for promulgating FIPs, the

majority applied the amended statute retroactively in

order to reduce the time for producing a FIP to zero,

with the bizarre result that Congress must be deemed to

have imposed a statutory deadline on EPA-that—the

Agency had already violated before the deadline even

came into existence.

c. There is still another indication in the language of

revised Section 110(¢) (1) that the obligation to promul-

gate a FIP was not intended to apply retroactively to

pre-1990 SIP disapprovals. The 1990 Amendments sub-

stantially rewrote Section 110(¢)(1) by adding a new

triggering event in Section 110(¢)(1) (A): EPA’s find-

ing that a submission fails to meet the “minimum cri-

teria” which are to be established by EPA pursuant to

new Section 110(k)(1)(A). 42 U.S.C. 7410(e) (1) (A)

(Supp. II 1990). “Minimum criteria” did not exist be-

fore passage of the 1990 Amendments, and thus an obliga-

tion to promulgate a FIP by virtue of a State’s failure

to meet those criteria could not possibly have come into

existence until after enactment of the Amendments.

While it is theoretically possible that Congress could have

intended that one clause of Section 110(¢) (1) would be

retroactive in effect while the other clause of that same

Section was exclusively forward-looking, one would cer-

tainly expect that the language used would reflect that

fundamental difference in approach. But subsection

110(¢)(1)(B) uses “disapproves” rather than “has dis-

approved” in reference to the SIP, which rebuts any

notion that Congress meant this one clause to look back-

ward to pre-Amendment disapprovals.

2. a. In addition to its failure to adhere to the lan-

guage and structure of amended Section 110(¢) (1) itself,

the court of appeals also failed to heed the rule that “a

Statute is to be read as a whole, since the meaning of

statutory language, plain or not, depends on context.”

King Vv. St. Vineent’s Hospital, 112 S. Ct. 570, 574 (1991)

(citations omitted). See Crandon v. United States, 494

U.S. 152, 158 (1990). When the 1990 Amendments are

read as a whole, it becomes apparent that Congress

plainly intended state and local authorities to be given

the first chance to devise SIPs to comply with the re-

quirements of the amended Act.

Congress completely revised the Act’s requirements for

nonattainment areas such as the South Coast in the 1990

Amendments. Most importantly for purposes of this case,

Congress repealed the pre-1990 provision requiring States

to attain the Act’s ozone and carbon monoxide standards

by 1987." Instead, Congress developed a graduated series

of requirements for different areas depending on the

severity of the air quality problem in each. Because of

the unique difficulties in bringing about attainment of air

quality standards in the South Coast area, Congress in-

cluded special provisions that apply to that area alone.

As the only “extreme” ozone nonattainment area in the

country, the South Coast is the only area that has been

given 20 years in which to attain the ozone standard, and

the only area permitted to rely in part on anticipated

new control technologies to reach attainment. 42 U.S.C.

T511(ai(1), 751llate)(5) (Supp. IT 1990). At the same

time, the 1990 Amendments impose specific new require-

ments for the South Coast ozone and carbon monoxide

SIPs, and impose new deadlines for submitting those

plans to EPA. Sections 171-193, 42 U.S.C. 7501- 7515

(Supp. II 1990).

This greatly altered legal regime highlights the —

of the majority’s ruling. A FIP is defined by the amended

Act as a plan to fill a gap or “correct all or a portion

of an inadequacy in a State implementation plan.” 42

U.S.C. 7602(y) (Supp. IIT 1990) (emphasis added). Cali-

fornia’s 1982 SIP for the South Coast area was rejected

by EPA in 1988 because it was “inadequa|te!”? when

measured by the pre-Amendment deadlines, and accord-

ingly EPA had an obligation under the pre-1990 Act to

promulgate a FIP in order to correct that “inadequacy.”

But it stretches the statutory language beyond the break-

ing point to say that California’s compliance with the

Act is maepater today in light of the amended stat-

®It was California’s failure to comply with that now-repealed

provision that led to EPA’s original rejection of the SIP for the

South Coast area and thus to EPA’s pre-1990 obligation to promul-

gate a FIP.

ute, because the State has not even been given a chance

to demonstrate its ability to comply with the new dead-

lines and requirements imposed by the 1990 Amendments

and has not yet failed to meet any of those deadlines.

b. In the unlikely event that Congress had wanted the

1990 Amendments to preserve EPA’s obligation to pre-

pare a FIP in cases where a SIP had run afoul of the

old deadlines, it presumably would have made this intent

clear in the general savings clause of the 1990 Amend-

ments, 42 U.S.C. 7515. The language of that clause,

however, strongly cuts against any such purported intent.

The relevant language preserves only any “control re-

quirement” that was in effect “or required to be adopted

by an order, settlement agreement, or plan in effect be-

fore November 15, 1990.” Such a control requirement

can be modified only if the modification “insures equiva-

lent or greater emission reductions.” 42 U.S.C. 7515.

While the settlement agreement in this case required

EPA to promulgate a FIP on a defined schedule, a FIP

is merely a plan, not a “control requirement.” ” If Con-

gress had intended to preserve EPA’s obligation to prom-

ulgate substitute federal plans, as Opposed to “control

requirements,” it presumably would have said so ex-

plicitly in the savings clause.

As the dissent points out (App., infra, 33a), the sav-

ings clause also preserved all regulations in effect before

the date of the Amendments. For this reason, FIPs

promulgated in final form before the Amendments were

enacted remain in effect. The settlement agreement obli-

gating EPA to promulgate a FIP was not promulgated

as a regulation (or a control requirement), however, and

' The second sentence of the savings clause provides that “[n]Jo

control requirement * * * required to be adopted by an order,

settlement agreement, or plan in effect” may be modified. 42 U.S.C.

7515. The fact that Congress used the words “control requirement”

and “plan” for different purposes within the Same sentence of the

savings clause is compelling evidence that it intended to give the

words different meanings.

hence was not preserved by the savings clause. The ma-

jority’s insistence (App., infra, 14a n.8) that preserving

an obligation to prepare a FIP is the same as preserving

a promulgated FIP itself ignores the plain language of

the savings clause.

ce. The majority’s conclusion that a FIP is required

now, before the State has even had an opportunity to

develop the required submissions under the amended Act,

violates the express congressional determination that “air

pollution prevention” and “air pollution control at its

source is the primary responsibility of States and local

governments.” Section 101(a) (3), 42 U.S.C. 7401 (a) (3)

(Supp. II 1990). This policy statement cannot be dis-

missed as mere precatory guidance; it goes to the heart

of how the Act was intended to work. This policy counsels

strongly against any reading of the Act that would re-

quire EPA to promulgate a FIP before the State has had

an opportunity to determine for itself how best to control

pollution under the greatly revised requirements of the

1990 Amendments.

The majority concluded that this strong statement

regarding the primacy of. state and local efforts was

essentially canceled out by the immediately following

statement regarding the importance of ‘Federal financial

assistance and leadership.” App., infra, 15a n.9 (quoting

42 U.S.C. 7401(a)(4)). But that statutory recognition

of the federal government’s obligation to provide financ-

ing and leadership in no way undercuts Congress’s funda-

mental policy decision that the States should have the

primary responsibility for air pollution control within

their borders. The Act provides for the federal govern-

ment to take the lead in promulgating certain nationally

applicable regulations, such as the motor vehicle and fuels

regulations mandated by Title II of the Act. 42 U.S.C.

7521 et seg. Beyond that, however, direct federal controls

on pollution are the exception rather than the rule. See

Train Vv. NRDC, 421 U.S. 60, 79 (1975) (“[EPA is]

plainly * * * relegated by the Act to a secondary role in

the process of determining and enforcing the specific,

source-by-source emission limitations which are necessary

if the national standards it has set are to be met.”);

Union Elec. Co. Vv. EPA, 427 U.S. 246, 267 (1976)

(“{T]he State has virtually absolute power in allocating

emission limitations so long as the national standards

are met’’). While it is undeniable that the federal govern-

ment has an additional role where a State has failed to

produce an adequate SIP, there is no warrant in the

statute for continuing federal primacy once Congress

amends the statute in a way that essentially moots the

State’s original failure.

3. Even if we assume, arguendo, that the language

and structure of the revised Act were unclear, the proper

response would be to defer to EPA’s construction, as long

as that construction was reasonable. Chevron U.S.A. Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837,

843-845 (1984); National Railroad Passenger Corp. Vv.

Boston & Maine Corp., 112 S. Ct. 1394, 1401 (1992).

The majority rejected the applicability of the Chevron

rule because, in its view, the statute was clear. App.,

infra, 20a. But Congress’s use of the present tense in the

critical phrase of the statute, combined with the repeal

of the provisions that had formed the basis for EPA’s

prior state plan disapprovals, indicates that Congress was

referring to future disapprovals under the amended Act,

not to prior disapprovals under the pre-1990 Act. At the

very least, this is not a question that admits of only one

reasonable answer. See United States v. Nordic Village,

Ine., 112 S. Ct. 1011, 1016 (1992) (a statute is not “un-

ambiguous” if its language admits of two plausible

readings).

Judicial deference to reasonable agency interpretations

of statutes they administer is a “well settled principle of

federal law.” National Railroad Passenger Corp. Vv.

Boston & Maine Corp., 112 8. Ct. at 1401. Despite the

fact that EPA’s construction is consistent with the lan-*

guage, history, and structure of the 1990 Amendments,

the court of appeals refused to defer to that construction

because the Agency had allegedly offered a contradictory

interpretation in the past. App., infra, 20a. The court

cited a letter written by the EPA Administrator six

months before passage of the amendments in which he

criticized the House version of the statute for generally

retaining the FIP requirement as a nondiscretionary

duty. The letter stated that the House version would

thereby preserve “current FIP obligations.” See App.,

infra, 19a (quoting 136 Cong. Rec. H2771, H2887 (daily

ed. May 23, 1990)). This statement, made as the dissent

points out “in the course of legislative bargaining” (App.,

infra, 24a), should not be taken as EPA’s contemporane-

ous interpretation of the Act itself.

Almest immediately after enactment of the 1990

Amendments, EPA set forth its official interpretation of

Section 110(c) (1), based on a reading of the entire

statute (including the savings clause). 56 Fed. Reg. 826

(1991). In that notice, EPA stated its formal interpre-

tation that FIP obligations based on pre-1990 SIP dis-

approvals did not survive the Amendments. This, rather

than a letter written during the early stages of the legis-

lative debate, constitutes the contemporaneous agency in-

terpretation of the Amendments. See Russello v. United

States, 464 U.S. 16, 29 (1983). The majority’s refusal to

give any deference to that agency interpretation was

error. See Rust v. Sullivan, 111 S. Ct. at 1769.

To be sure, the language of Section 110(c) referred to

in the Administrator’s letter was unchanged in the bill

as finally enacted, but the post-letter legislative history

of the savings clause clarifies that Congress itself did not

interpret the 1990 Amendments to require EPA to prom-

ulgate such FIPs. Senator Baucus, Chairman of the

Conference Committee on the 1990 Amendments, inserted

in the Congressional Record a statement, entitled “Clean

Air Conference Report,” intended as “an explanation that

is much more detailed than the statutory language.”

136 Cong. Rec. $16,969 (daily ed. Oct. 27, 1990). The

statement indicated that the savings clause is an anti-

backsliding provision and that “[w]e do not intend that

this savings clause requires EPA to finalize the Federal

Implementation Plan in California and preempt the states

and regional air quality planning that is ongoing in the

Los Angeles area and will otherwise be required under

this legislation.” Jd. at $16,970. The ranking minority

member of the Conference Committee confirmed this in-

tention in a colloquy with then-Senator Wilson of Cali-

fornia. See 136 Cong. Rec. $17,237 (daily ed. Oct. 27,

i990). Those statements thus specifically addressed the

ultimate question raised in the Administrator’s letter on

which the court of appeals relied.

The court of appeals simply dismissed these indications

of legislative intent as the statements of individual legis-

lators entitled to no weight, even though these statements

are consistent with the anti-backsliding language of the

savings clause. But it is well settled that the statements

of individual legislators are entitled to consideration in

some instances, particularly where the individuals at issue

are those whose explanations are likely to have been

viewed as authoritative by the members of the legislative

body that enacted the legislation. See, e.g., National

Ass'n of Greeting Card Publishers v. United States Postal

Serv., 462 U.S. 810, 832 n.28 (1983) (statements of con-

ference committee members are “certainly significant,”

and conference committee reports are “due great

weight”) ; North Haven Bd. of Education v. Bell, 456 U.S.

512, 526-527 (1982). Here, the chairman and senior

minority member of the conference committee made state-

ments squarely supportive of EPA’s post-adoption inter-

pretation of the Amendments, and at the very least EPA

was entitled to rely on those statements in determining

the meaning of the Act as finally adopted. The court of

appeals accordingly erred in rejecting EPA’s reasonable

interpretation of the 1990 Amendments in favor of its

own strained interpretation of the statute.

4. The court of appeals’ decision, if allowed to stand,

will likely inflict substantial hardship on the citizens and

businesses of large segments of the Nation’s most popu-

lous State. Those areas will suffer more adverse impacts

and disruption from EPA’s implementation of a FIP

than would result from implementation of SIPs designed

to achieve the same air quality goals, because EPA does

not have the same range of control and enforcement tools

available to the State.

The Los Angeles area, despite having the most stringent

air pollution controls in the nation, still suffers from the

Nation’s worst air quality problem. See generally 53

Fed. Reg. 49,494 (1988); 55 Fed. Reg. 36,458 (1990).

Any plan to attain the ozone standard there will demand

a reduction in ozone-precursor emissions of more than

80 percent even after application of current stringent local

regulations. 53 Fed. Reg. 49,495, 49,502 (1988) ; 55 Fed.

Reg. 36,460 (1990); Declaration of David P. Howekamp

"6 (attached to Appellees’ Motion To Stay The Issuance

Of The Mandate). Attainment will require substantial

emission reduction contributions from nearly every sector

of the Los Angeles area economy. For instance, controls

will be necessary on thousands of industrial sources, in-

cluding such heavily regulated sources as refineries, utili-

ties, and aerospace facilities, as well as printers, com-

mercial bakeries, electronics firms, and small businesses.

Attainment will also demand severe cutbacks in vehicle

emissions, perhaps through a combination of forced tech-

nological advances and reduced vehicle use. Id. at %% 6,

7, and 8. Beyond that, any attainment plan for the area

will require emissions reductions from such nontraditional

sources as airport operations, locomotives, marine vessels,

recreational vehicles and boats, agricultural equipment

and consumer products. Jd. at {|{ 7, 8.

Because the South Coast is classified as an “extreme”

ozone area, Congress granted the State until November

15, 1994, to submit major portions of the area’s new

SIP, and created a unique set of planning requirements

applicable only to the South Coast area. 42 U.S.C. 7511

to develop and implement a FIP, not only would the

timing of the plan’s adoption be altered, but the content

of the regulations themselves would differ drastically

from the content of a state-adopted plan.

Moreover, an EPA FIP would inflict far more economic

and social dislocation on California than would a SIP.

There is a vast arsenal of approaches available to state

and local governments, but effectively foreclosed to EPA,

that can mitigate the disruptive effects of stringent reg-

ulation. Local authorities have at their disposal a range

of techniques that federal regulators could not legally or

feasibly implement and hence that could not be a part of

a federal plan."’ Local authorities can, for example, con-

struct high occupancy vehicle lanes, expand mass transit

service, provide carpooling incentives, incorporate air

pollution control elements into comprehensive land use

and development plans, synchronize traffic signals, meter

freeway access ramps, establish one-way streets, provide

telecommuting incentives, and maintain automated high-

way control systems—all designed to reduce motor vehicle

emissions.

By contrast, because of EPA’s limited ability and

resources to implement and enforce measures tailored to

local circumstances, it would likely be necessary for an

EPA plan to reduce emissions from motor vehicles by

‘I Section 110(a) (2) (E) (i) of the Act requires the plan to in-

clude necessary assurances that the State will have “adequate per-

sonnel, funding, and authority * * * to carry out such implementa-

tion plan.” 42 U.S.C. 7410(a) (2) (E) (i) (Supp. I 1990). Any FIP

would need to meet the same requirement. Section 302(y), 42

U.S.C. 7602(y) (Supp. II 1990).

prohibiting or restricting vehicle use through a smaller

set of simplistic and extreme measures such as gas ration-

ing, no-drive days, limits on vehicle registration, and bans

on high-emitting vehicles. Similarly, a FIP necessarily

would rely on a few crude but sweeping measures to force

huge cutbacks in solvent use (which is partly responsible

for ozone-precursor emissions) and use of other polluting

chemicals by industry and other sources.

The history of FIP regulation in the South Coast dem-

onstrates the important practical differences between

SIPs and FIPs. In the 1970s, EPA’s attempts to formu-

late a FIP to correct the South Coast’s failure to meet

the requirements of the 1970 Act relied heavily on mas-

sive gas rationing to achieve compliance with the Act.

Fiercely negative public reaction led EPA to rescind the

plan on the eve of passage of the 1977 Amendments. 41

Fed. Reg. 45,565 (1976); see also 53 Fed. Reg. 49,494,

49,497-49,498 (1988). The committee reports accompany-

ing the 1977 bills to amend the Act recognized the rela-

tive crudeness of the FIP that EPA had promulgated in

response to state failures under the 1970 Act. See H.R.

Rep. No. 294, 95th Cong., Ist Sess. 286-288 (1977), re-

printed in 4 Leg. Hist. 2753-2755 (reviewing EPA’s in-

trusive FIPs of the 1970s and stating that “as a prac-

tical matter State and local governments are in a better

position than EPA to resolve those pollution problems,

which involve millions of motor vehicles”); S. Rep. No.

127, 95th Cong., Ist Sess. 10 (1977), reprinted in 3

Leg. Hist. 1884 (“The Federal Government does not have

the resources to do an effective job of running the air

pollution control programs of the State.”’).

The FIP that EPA proposed just before enactment of

the 1990 Amendments further reveals how markedly a

South Coast SIP would differ from a FIP for the area.

That FIP proposal contrasted the 139 control measures

then under careful development by the state and local .

authorities with the handful of pervasive measures EPA

was including in its proposed FIP. 55 Fed. Reg. 36,470,

36,501 (1990). While the State had not yet adopted

most of the measures discussed in the FIP proposal, the

blueprint for the State’s program listed a vast array of

detailed control options that State and local authorities

planned to include in a properly developed plan. /d. at

36,479-56,484. By contrast, EPA’s limited ability to im-

plement many of the measures on the local authorities’

list—for instance, the transit improvements and com-

muter provisions in the South Coast’s “Measure 2,” id.

at 36,486-36,487—forced the Agency to limit its proposed

FIP to a relative handful of crude measures. ZJd. at

36,501."

The likely result of the decision below, therefore, is

that EPA and the State will be formulating very dif-

ferent attainment plans simultaneously over the next few

years. Even if the State fulfills its obligation to submit

an attainment demonstration in 1994, this merely sets in

motion a process lasting until at least 1996 for EPA to

review the State’s SIP and approve or disapprove it under

the applicable requirements. Section 110(k) (1), 42 U.S.C.

7410(k) (1) (Supp. IT 1990). In the meantime, as long

as EPA’s FIP is in effect, sources will need to take steps

toward compliance with it, even though the State will be

preparing a plan that may make quite different de-

mands on those sources. Because of the uncertainty as

to which plans or portions will actually be implemented,

the regulated community will suffer substantial confusion

in its attempts to make the necessary preparations re-

quired to comply."*

'’ Due to the harshness of these measures, EPA proposed in the

alternative a FIP composed almost entirely of commitments to

formulate FIP measures in the future. 55 Fed. Reg. 36,532-36,533

(1990). The Agency noted, however, that it was “unclear whether

a committal FIP for the [South Coast areal would be consistent

with the statute.” Jd. at 36,503.

'* This contrasts with the far narrower scope and negligible

impact of the FIPs that EPA was required to promulgate for two

Thus, the court of appeals’ decision is likely to cause

substantial disruption of economic planning and air qual-

ity control in the Los Angeles basin over the next several

years. Similar disruption would likely occur in the

other California areas directly affected by the panel’s

decision.'' Avoiding that disruption and assuring proper

implementation of the new statutory scheme enacted by

Congress is a matter of such exceptional importance that

this Court should review the decision below.

We recognize that the particular legal question pre-

sented in this case is of limited scope and of a non-

recurring nature. In light of the potentially severe prac-

tical consequences of the decision below, however, we be-

lieve that review is warranted. Moreover, in view of the

clarity of the pertinent statutory material and the mani-

Arizona areas pursuant to the court order in Delaney V. EPA, 898

*.2d 687 (9th Cir.), cert. denied sub nom. Reilly v. Delaney, 111

S. Ct. 556 (1990). In those areas, EPA was able to write a plan to

solve the air quality problem by developing a few moderate, care-

fully tailored, implementable measures. See 56 Fed. Reg. 5458

(1991). Arizona had already developed and implemented numerous

control measures designed to bring the areas—Tucson and Phoenix—

into attainment. As a result of Arizona’s successful implementation

of its measures, by the time EPA was called upon to promulgate

a FIP, the Tucson area was already in attainment, and the Phoenix

area was on the brink of attainment. Thus, EPA in its FIP for

Tucson did not have to adopt any new control measures, and in

its FIP for Phoenix needed merely to strengthen two measures

previously adopted by Arizona—an oxygenated gasoline program

and a gasoline volatility controi program. Moreover, before these

federal measures could even take effect, Arizona passed legislation

mandating equivalent measures. EPA then approved those measures

in lieu of the measures contained in its FIP. 57 Fed. Reg. 8268

(1992).

14 The federal plan for Sacramento, one of the other affected

areas, would be similarly intrusive, since attainment of the ozone

standard there might require even greater emission reductions from

mobile sources, and would have to be implemented on a shorter

attainment schedule.

fest error of the divided Ninth Circuit, the Court may

wish to consider summary reversal.

CONCLUSION

The petition for a writ of certiorari should be granted.

In the alternative, the Court may wish to consider

summary reversal.

Resnectfully submitted.

TYrr

KENNETH W. STARR

Solicitor Gene ral

VICKI A. O’MEARA

A cting A ssistant A thorne i Ge Vie ral

LAWRENCE G. WALLACE

Deputy Solicitor General

THOMAS G. HUNGAR

Assistant to the Solicitor fd Vie ral

DAVID C, SHILTON

KAREN L. EGBERT

Attorne Ys

RAYMOND B. LUDWISZEWSKI

Acting General Counsel

i , P

| rIirVORMe rai P OTPECTION AGency

NOVEMBER 1992

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 91-55634

D.C. No. CV-88-4414-HLH

COALITION FOR CLEAN AIR: SIERRA CLUB, INX..,

PLAINTIFFS-APPELLANTS

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, DEFENDANT-APPELLEE

Vv.

SOUTHERN CALIFORNIA EDISON COMPANY,

PLAINTIFF-INTERVENOR-APPELLEE

Appeal from the United States District Court

for the Central District of California

Harry Ll. Hupp, District Judge, Presiding

Argued and Submitted April 10, 1992*

Pasadena, California

Filed July 1, 1992

* The panel unanimously finds Case No. 91-5534 suitable

for decision without oral argument. Fed. R. App. P. 34(a)

and Ninth Circuit Rule 34-4.

(la)

Before: Alfred T. Goodwin, William A. Norris, and

John T. Noonan, Jr., Circuit Judges.

Opinion by Judge Norris; Dissent by Judge Noonan

OPINION

NORRIS, Circuit Judge:

California’s South Coast Air Basin has the dirtiest

air in the United States.' Twenty-two years have

passed since Congress first enacted legislation re-

quiring implementation plans to attain national air

quality standards, and yet today the South Coast

still lacks implementation plans for ozone and carbon

monoxide. In 1989, EPA entered into a settlement

agreement with appellants requiring it to perform

its statutory duty and promulgate federal implemen-

tation plans for the South Coast on an expeditious

schedule. EPA now argues that, when Congress

passed the Clean Air Act Amendments of 1990, it

relieved EPA of this obligation and returned the im-

plementation plan process to square one. We disagree

and reverse the district court’s decision vacating the

settlement agreement and dismissing the case. Co-

alition for Clean Air v. EPA, 762 F. Supp. 1399

(C.D. Cal. 1991). We remand to the district court

for reinstatement of the agreement and direct the

1The South Coast Air Basin covers much of Southern

California including Orange County and the non-desert por-

tions of Los Angeles, Riverside, and San Bernadino Counties.

It has by far the worst ozone and nitrogen dioxide levels in

the United States and arguably the worst carbon monoxide

level of any urbanized area in the United States. 55 Fed. Reg.

36,458, 36,464 (1990).

court to establish an expeditious schedule for EPA to

promulgate final implementation plans for the South

Coast.

The Clean Air Act was passed in 1963, but it was

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

91-604, 84 Stat. 1676 (1970), that gave the Clean

Air Act. the basic structure it retains today. See

generally Train v. NRDC, 421 U.S. 60, 63-64 (1975)

(discussing pre-1970 statutes). The 1970 Amend-

ments created “a federal-state partnership for the

control of air pollution.” Abramowitz v. EPA, 832

F.2d 1071, 1073 (9th Cir. 1987). Section 109 of the

Act, as amended, directed EPA to establish National

Ambient Air Quality Standards (“NAAQS”) for any

air pollutants that might endanger public health or

welfare. Clean Air Act (“CAA”) § 109, 84 Stat. at

1679-80. EPA issued NAAQS for six pollutants in

1971, including carbon monoxide (“CO”) and ozone.”

Responsibility for meeting these standards fell, in

the first instance, to the states, which were required

to submit State Implementation Plans (“SIPs”) by

1972 that would provide for attainment of the

NAAQS by 1975. CAA §110(a)(1), 84 Stat. at

1680. EPA was required to review the SIPs and to

disapprove any that failed to meet the requirements

of the Act, including the attainment of NAAQS by

the statutory deadline. CAA § 110(a) (2), 84 Stat.

at 1680-81. If EPA disapproved a SIP, the 1970

Amendments required that EPA adopt a Federal

* The other four pollutants were particulate matter, sulfur

dioxide, nitrogen oxides, and hydrocarbons. Lead was added

to the list in 1978 and hydrocarbons were removed in 1983.

See Abramowitz, 832 F.2d at 1073.

4a .

Implementation Plan (‘‘FIP’’) that would meet the

requirements of the Act and take the place of the

disapproved SIP. CAA § 110(c), 84 Stat. at 1681-82.

In February 1972, California submitted a SIP for

the South Coast to EPA. On May 31, 1972, EPA

announced its disapproval of major portions of the

SIP. 387 Fed. Reg. 10,842, 10,851-10,855 (1972).

At that point, EPA was statutorily required to adopt

a FIP for the South Coast but failed to act. As the

result of a citizens’ suit, EPA was placed under a

court order to prepare a FIP by January 15, 1973

that would provide for attainment of NAAQS no

later than 1977. Riverside v. Ruckelshaus, Civ. No.

72-2122-H, 4 Envt’l Rep. Cas. (BNA) 1728, 1731

(C.D. Cal. Nov. 16, 1972). During 1973, EPA issued

several proposed FIPs that contained extreme provi-

sions including gas rationing. See, e.g., 38 Fed. Reg.

2194, 2194-2200 (1973) ; 38 Fed. Reg. 31,282, 31,232-

31,255 (1973). On October 15, 1976, EPA revoked

its proposed gas rationing regulations, which were

due to take effect in 1977, because of “the seriously

disruptive social and economic consequences of such

regulations,” in spite of the fact that the revocation

would “render the affected [implementation plans]

defective as a legal matter, since such [plans] will

no longer contain regulations which provide for

NAAQS attainment.” 41 Fed. Reg. 45,565 (1976).

Faced with widespread failure by the states to

attain NAAQS, Congress amended the Clean Air Act

again in 1977, to give “‘nonattainment” areas more

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

deadline for NAAQS attainment was extended to

1982. CAA $172, 91 Stat. at 746-48. On July 25,

1979, California submitted a SIP for the South Coast

Air Basin requesting an extension of the ozone and

it areeern meneame

CO attainment dates to 1987. EPA proposed to dis-

approve the SIP because California had failed to

adopt a motor vehicle inspection and maintenance

program, which was required as a condition for

granting such an extension. 45 Fed. Reg. 21,271,

21,271-21,282 (1980). EPA took final action dis-

approving the SIPs for ozone and CO on January 21,

1981. 46 Fed. Reg. 5965, 5975 (1981).

In 1982, California submitted extensive revisions

to its proposed South Coast SIPs for ozone and CO.

These 1982 proposed SIPs acknowledged that even

if the plans were fully implemented, the South Coast

would fail to attain the ozone and CO NAAQS by

1987. 48 Fed. Reg. 5074, 5082-5083 (1983). On

February 3, 1983, EPA proposed to disapprove the

1982 SIPs. Jd. at 5074. California submitted fur-

ther revisions, and EPA took final action on July

30, 1984, approving the CO and ozone control meas-

ures without requiring any demonstration that those

measures would achieve attainment by the statutory

deadline. EPA simply noted that it was deferring

any final approval or disapproval of the SIP’s attain-

ment provisions. 49 Fed. Reg. 30,300, 30,305 (1984) :

see Abramowi!, “32 F.2d at 1074.

In September i984, a citizen timely petitioned this

court for review of the EPA’s 1984 decision. We

held that “EVA exceeded its authority under the

Clean Air Act by approving the control measures

without determining whether those measures would

demonstrate attainment by the December 31, 1987

statutory deadline.” Abramowitz, 832 F.2d at 1072-

73. We remanded “with the specific instruction that

KPA disapprove the relevant portions of the SIP

and face up to implementing the measures which are

to be triggered by failure to meet attainment re-

quirements.” Jd. at 1073. In compliance with our

order, EPA disapproved the South Coast SIPs for

ozone and CO on January 22, 1988, triggering once

_again EPA’s statutory obligation to adopt F1Ps for

the South Coast Air Basin. 53 Fed. Reg. 1780

(1988).

On February 22, 1988, appellants Coalition for

Clean Air and the Sierra Club filed this citizens’ suit

to enforce EPA’s obligation to promulgate ozone and

CO FIPs for the South Coast. In March 1989, EPA

entered into a settlement agreement with plaintiffs,

which obligated it to prepare, propose, and promul-

gate final FIPs for the South Coast. Because of the

1989 San Francisco earthquake, the district court

extended EPA’s deadline for publishing the proposed

FIPs from April 30 to July 31, 1900. EPA finally

published the proposed FIPs on September 5, 1990,

and agreed to finalize them by February 28, 1991.

55 Fed. Reg. 36,458, 36,458-36,576 (1990).

In the meantime, EPA sought across-the-board

relief from its statutory obligation to promulgate

FIPs from Congress, which had begun to consider

new amendments to the Clean Air Act. In Septem-

ber 1989, at EPA’s urging, the Senate passed an

amendment that would have left promulgation of

FIPs to EPA’s discretion. See S. 1630, 101st Cong.,

lst Sess., § 105 (1989). In May 1990, a House Com-

mittee deleted this language, which prompted a letter

from EPA Administrator Reilly complaining that the

House action would require promulgation of a FIP

imposing “across-the-board, draconian measures dev-

astating the country’s largest industrial area,” an

obvious reference to the South Coast Air Basin. 136

Cong. Rec. H2771, H2887 (daily ed. May 23, 1990).

However, Administrator Reilly’s complaint went un-

heeded by Congress. The House language retaining

EPA’s mandatory obligation to promulgate a FIP

whenever it disapproves a SIP was ultimately enacted

by Congress and signed into law by President Bush

on November 15, 1991 as part of the Clean Air Act

Amendments of 1990. Pub. L. No. 101-549, 104 Stat.

2399 (1990).

On November 30, 1991, EPA filed a motion asking

the district court to vacate the settlement agreement

and dismiss the case on the basis of the 1990 Amend-

ments. EPA argued that Congress could not have

intended to continue EPA’s obligation to promulgate

FIPs for the South Coast under the settlement agree-

ment because the 1990 Amendments contained new

criteria and new timetables for attainment, which

EPA claimed the states must address in the first

instance. Under EPA’s interpretation of the 1990

Amendments, its mandatory obligation to promulgate

FIPs would be triggered only if California failed to

submit adequate SIPs under the new deadlines. The

earliest date FIPs would be required for the South

Coast under this interpretation of the 1990 Amend-

ments is April 15, 1998. The district court granted

EKPA’s motion to vacate the settlement agreement

and dismissed the case. This appeal followed.

Appellants make two arguments in support of their

position that EPA is currently obligated to promul-

gate ozone and CO FIPs for the South Coast. First,

they argue that §110(c)(1)(B) of the Clean Air

Act, as amended, did not relieve EPA of its obliga-

*In a separate action, EPA moved to vacate a settlement

| agreement requiring it to promulgate a FIP for the Sacra-

| mento area. The district court denied EPA’s motion on

December 2, 1991. Environmental Council of Sacramento v.

EPA, Civ. No. S-87-420 EJG, (E.D. Cal. Dec. 2, 1991).

tion to promulgate these FIPs. Second, they argue

that even if § 110(c) (1) had been amended to relieve

EPA of its FIP obligation, the Amendments’ Savings

Clause—§ 193 of the Clean Air Act—would have

preserved EPA’s obligation under the settlement

agreement. Because we hold that § 110(c) (1) (B)

imposes a current obligation on EPA to promulgate

ozone and CO FIPs for the South Coast, we do not

reach the Savings Clause question.

EPA’s statutory obligation to promulgate FIPs is

contained in $110(c)(1) of the Clean Air Act, as

amended in 1990:

The Administrator shall promulgate a Federal

implementation plan at any time within 2 years

after the Administrator—

(A) finds that a State has failed to make a

required submission or finds that the plan

or plan revision submitted by the State does

not satisfy the minimum criteria established

under section 7410(k)(1)(A) of this title,

(B) disapproves a State implementation

plan submission in whole or in part,

unless the State corrects the deficiency, and the

Administrator approves the plan or plan revi-

sion, before the Administrator promulgates such

Federal implementation plan.

42 U.S.C. § 7410(c)(1). Appellants contend that

under subsection (B), EPA is obligated to promul-

gate ozone and CO FIPs for South Coast based on its

disapproval in January 1988 of California’s proposed

SIPs. EPA, on the other hand, contends that § 110

prospectively only, so that EPA’s obligation to prom-

ulgate a FIP for the South Coast will be triggered

only if California fails to submit a SIP that meets

the requirements of the Clean Air Act by the dead-

lines set forth in the 1990 Amendments.

We begin with the language of the provision: “The

Administrator shall promulgate a Federal imple-

mentation plan at any time within 2 years after

the Administrator . . . disapproves a State imple-

mentation plan submission in whole or in part.” This

language is not, by its terms, limited to EPA’s dis-

approval of “newly submitted” SIPs or SIPs “sub-

mitted under the 1990 Amendments.” Instead it

refers to disapproval of state implementations plans

generally, either in whole or in part. EPA must

promulgate a FIP within two years of such dis-

approval, unless the state submits and EPA approves

revisions to the SIP that correct the deficiency. Since

EPA disapproved the South Coast SIPs in January

1988, the statute on its face requires EPA to promul-

gate FIPs for the South Coast by January 1990.‘

We recognize that EPA’s obligation under $110

referred to by the word “shall” is two years from any

of the triggering events listed in the provision, not

* Under the terms of the pre-1990 Act, EPA had only six

months from the date that the original state submission w as

due in which to promulgate a FIP. 84 Stat. at 1681-82.

10a

two years from enactment of the 1990 Amendments.*

Triggering event (A) actually includes two separate

events: (1) EPA’s finding that a state has failed

to make a required submission, and (2) EPA’s find-

ing that a submission fails to meet the minimum

criteria for completeness established under § 7410

(k)(1) (A). Since § 7410(k) (1) (A) was added by

the 1990 Amendments, it appears that the second of

these findings could only occur after enactment of the

1990 Amendments. However, neither the first of these

findings nor triggering event (B)—disapproval of “‘a

State implementation plan submission in whole or

in part’”—contains any similar temporal limitation.

Since these events could occur in the past or in the

future, the use of the future tense “‘sha!l’” to express

EPA’s obligation does not indicate Congress’ intent

that $ 110(c) (1) operate prospectively only. In other

words, if “disapproves” refers to past disapprovals

as well as to future ones, “shall” is the appropriate

word to describe obligations which may already have

been triggered as well as those which may be trig-

gered in the future.

However, EPA argues that the word “disapproves”

cannot refer to past disapprovals because it is phrased

in the present tense. EPA relies heavily on Gwaltney

v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57-59

(1988), in which the Supreme Court interpreted a

provision authorizing citizens’ suits against persons

“alleged to be in violation of” pollution permits as

> Thus, we agree with Judge Noonan that the language of

$110(c) (1) is “future-looking.” Dissent at 7755. We dis-

agree, however, that § 110(c) (1) looks to the future from the

time of the 1990 Amendments’ enactment as opposed to the

time of the triggering events listed in § 110(c) (1).

lla

requiring continuous or intermittent violations. How-

ever, that case involved more than use of the present

tense. It also involved the phrase “in violation,”

which, coupled with the present tense, suggests a

focus on current violations that use of the present

tense by itself would not. Moreover, EPA’s argument

proves too much. As appellants point out, the Clean

Air Act, as amended, uses the present tense frequently.

For example, Congress uses the present tense to estab-

lish criminal liability for “[a]ny person who know-

ingly—(A) makes any false material statement, .. .

(B) fails to notify or report as required under this

Act; ...” 42 U.S.C. § 7413(c) (2) (emphasis added).

Yet clearly the 1990 Amendments do not forgive crim-

inal violations that occurred prior to the Amendments

just because Congress speaks in the present tense.

The present tense is commonly used to refer to past,

present, and future all at the same time. We believe

that Congress used the present tense word “disap-

proves” because it did not wish to limit $110

(c)(1)(B)’s reach to either past or future dis-

approvals.

Unlike Judge Noonan, we attach no weight to the

fact that Congress chose to repeal an awkwardly

drafted $110(c)(1) and replace it with a clearer

version. See Dissent at 7752-53.° The new § 110

* Nor, in our view, is it significant that Congress chose to

increase the time EPA is given to prepare a FIP to two years

and to permit states to correct deficiencies in their SIPs at

any time within those two years. See Dissent at 7753-54.

Both these changes affect what happens after EPA’s duty to

promulgate a FIP has been triggered. Neither one bears on

when EPA’s duty is triggered, which is the critical question

in this case.

12:

(c)(1) contains the same triggering events as the

old $110(e) (1). Judge Noonan asserts that sub-

>) of the amended § 110(c) (1) is new, see

Dissent at 7755, but it is not. The current subsection

(BB) merely incorporates the old subsection (B), which

required promulgation of a FIP when a SIP was de-

termined not to meet the requirements of the Act.

See &4 Stat. at 1681-82. Judge Noonan also focuses

on the fact that the 1999 Amendments added a new

trigvering event: EPA’s finding that a submission

fails to meet the minimum criteria for completeness

established under §$ 7410(k)(1)(A). See Dissent at

7753. He says there is no reason to ignore subsection

(A) in interpreting subsection (B). /d. at 7755. The

problem with this analysis is that Congress put the

word “or” between (A) and (B). Indeed, Congress

put the word “or” between the two separate trigger-

ing events contained in subsection (A). Clearly Con-

gress intended that EPA’s obligation to promulgate a

FIP would be triggered by any one of the three trig-

gering events contained in § 110(c¢) (1) as amended.

n short, the plain language of §$ 110(c)(1)(B)

supports appellants’ contention that EPA is currently

obligated to promulgate FIPs for the South Coast

7Prior to 1990, £110(c) (1) contained three triggering

events, all of which have been incorporated in the new

£110(c) (1). Old subsection (A) dealt with a State’s failure

to submit a SIP. Old subsection (C) dealt with a State’s

failure to revise a SIP. Both situations are now incorporated

in subsection (A) which refers broadly to “required submis

sionfs].”” Old subsection (B), which required promulgation

of a FIP when a SIP was determined not to meet the re-

quirements of the Act, is incorporated in current subsection

(B), which requires promulgation of a FIP when EPA disap-

proves aSiP.

13a

based on its January 1988 disapproval of California’s

proposed SIPs.

EPA also argues that requiring it to promulgate

IPs for the South Coast at this time would be in-

consistent with the 1990 Amendments as a whole

because those Amendments impose new deadlines and

change certain requirements of the Clean Air Act.

The district court found this argument persuasive.

It reasoned that if the Act were interpreted to con-

tinue EPA’s existing obligation to promulgate FIPs

for the South Coast, “there would be the anomaly that

the SIP prepared by the State under the former

criteria and rejected is to be replaced by a FIP pre-

pared under new criteria that the State has never

had an opportunity to address.” Coalition for Clean

Air, 762 I. Supp. at 1401. Of course, the proper

contents of FIPs for the South Coast are not before

us, and we need not decide whether EPA would be

required to meet any additional requirements im-

posed by the 1990 Amendments in promulgating

FIPs for the South Coast. The sole question on

appeal is whether EPA’s obligation to promulgate

such FIPs survived the 1990 Amendments. We there-

fore consider the 1990 changes in the Act’s deadlines

and requirements for the limited purpose of deciding

whether an “anomaly” would result from enforcing

the plain language of § 110(c) (1) (B).

On closer inspection, we find that no such anomaly

exists. EPA points to the fact that the 1990 Amend-

ments extend the deadlines for attainment of ozone

and CO standards for the South Coast until 2010

and 2000 respectively. 42 U.S.C. §7511(a) (1); id.

§ 7512(a)(1). Yet the FIP that EPA has proposed

l4a

to adopt for the South Coast, ostensibly under the

requirements of the old Clean Air Act, provided for

attainment of these standards on precisely the same

schedule. 55 Fed. Reg. 36,458, 36,500 (1990). Thus,

KPA cannot claim that continuing its obligation to

promulgate a FIP for the South Coast will deny the

region any extra time to which they would be entitled

under the 1990 Amendments.”

IPA also argues that the 1990 Amendments re-

quire new measures to control oxides of nitrogen

(NOx) and volatile organic compounds (VOCs),

which are precursors of ozone, which the state musi

address in the first instance. 42 U.S.C. § 75ila(f).

However, there is no reason the state may not pro-

pose these new measures as revisions to the FIP under

the timetables provided in the 1990 Amendments just

as the state would be required to do if a FIP had

been in effect when those Amendments were adopted.

See 42 U.S.C. § 75lla(e). Appellants have not ar-

gued that EPA’s continuing obligation to promulgate

kIPs relieves the state of any new obligations im-

posed by the 1990 Amendments.

®* Tudge Noonan asserts that Congress removed the basis for

appellants’ claim when it extended the deadlines for attain-

ment, but this argument proves too much. Sce Dissent at

7756. By the same logic, Congress would at the same time

have removed the basis for all existing FIPs that rest on a

state’s past failure to meet a deadline. We are aware of

nothing in the 1990 Amendments or their legislative history

indicating that Congress intended to inv. lidate all existing

FIPs. Indeed EPA agreed at oral argument that, if the South

Coast FIPs had been in effect at the time of the 1990 Amend-

ment, those amendments would not have provided the basis

for vacating the existing FIPs. ~

l5a

Minally, EPA points out that the 1990 Amendments

authorize it, under certain conditions, to approve SIP

provisions for the attainment of ozone standards for

the South Coast that anticipate new control techniques

or the improvement of existing techniques and base

attainment on the use of such technological advances.

42 U.S.C. § 751la(e) (5). This new provision may

allow EPA to approve some parts of the ozone SIP

that it disapproved in 1988, and Judge Noonan points

out that it would “make nonsense” of the 1990 Amend-

ments not to give effect to this provision. See Dissent

at 7756. However, under § 110(c) (1 ), EPA has au-

thority to approve a SIP that meets the requirements

of the Act at any time prior to the actual] promulga-

tion of a FIP. 42 U.S.C. § 7410(c)(1). Thus, there

appears to be nothing to stop EPA from allowing

California to rely on anticipated technology by ap-

proving SIP provisions that now meet the require-

ments of the Act.

Running throughout EPA’s argument is the notion

that federal involvement jecessarily preempts state

planning to control air pollution. However, this is a

misconception. The Clean Air Act creates “a federal-

state partnership for the control of air pollution,”

Abramowitz v. EPA, 832 F.2d at 1073, which con-

tinues after EPA’s obligation to promulgate a FIP

has been triggered.? As we have just observed, the

® Judge Noonan cites Congress’ finding in § 101 of the Act

that prevention and control of air pollution is “the primary

responsibility of States and loca] governments.” 42 U.S.C.

§ 7401(a) (3); Dissent at 7757. But Congress also found

“that Federal financial assistance and leadership is essential

for the development of cooperative Federal, State, regional,

and local government programs to prevent and control air

pollution.” 42 U.S.C. § 7401 (a) (4). Moreover, Congress’ de-

16a

state may propose and EPA may approve revisions to

a proposed SIP that meet the requirements of the

Act at any time prior to the actual promulgation of

a FIP. 42 U.S.C. § 7410(c) (1). Even after a FIP

is promulgated, the states remain responsible for

submitting revisions to the FIP if EPA changes

the air quality standards, see 42 U.S.C. § 7410(a) (1),

or if Congress changes the provisions of the Act, see,

e.g., 42 U.S.C. § 751la(e)."* Thus, we fail to see how

enforcing the plain terms of §110(c)(1)(B) will

create an unintended anomaly.

Although the language of § 110(c)(1)(B) is clear

on its face, EPA contends that statements by Sena-

tors Baucus and Chafee relating to § 193—the Sav-

cision to require mandatory FIPs if the states failed to provide

for attainment of NAAQS shows that Congress did not intend

to leave air pollution control to the states alone. Contrary to

Judge Noonan’s assertion, it does not stand the Clean Air Act

on its head to enforce a mandatory obligation imposed by

Congress. See Dissent at 7757.

specifically designed to supplement rather than to replace

state planning: “a pian (or portion thereof) promulgated by

the Administrator to fill all or a portion of a gap or otherwise

correct all or a portion of an inadequacy in a State imple-

mentation plan.” 42 U.S.C. § 7602(y) (emphasis added).

11 Under § 75lla(e), the state is required to submit revi-

sions to the “applicable implementation plan.” The Act defines

“applicable implementation plan” as “the portion for por-

tions) of the implementation plan or most recent revision

thereof, which has been approved under section 7410, or prom-

ulgated under section 7410(c).” 42 U.S.C. § 7602(q). In

other words, it refers both to SIPs approved by EPA and to

FIPs promulgated by EPA.

17a

ings Clause—demonstrate Congress’ intent to relieve

EPA of its obligation to promulgate FIPs for the

South Coast. We reject this contention for several

reasons. First, there is no need to refer to the legis-

lative history of a statute When the language of the

Statute is clear. Toibb v. Radloff, 111 S. Ct. 2197,

2200 (1991). Second, the statements of individual

legislators are entitled to little, if any, weight. “[I]t

is the official committee reports that provide the au-

thoritative expression of legislative intent... . Stray

comments by individual legislators, not otherwise

Supported by statutory language or committee re-

ports, cannot be attributed to the full body that

voted on the bill.” Jn re Kelly, 841 F.2d 908, 912

n.3 (9th Cir. 1988); United States v. Shaw, 936

F.2d 412, 416 (9th Cir. 1991). Third, we do not

think that the statements by Senators Baucus and

Chafee support the EPA’s interpretation.

Senator Baucus made the following statements on

the floor of the Senate during its final debate on the

1990 Amendments:

The savings clause in the new legislation is

intended to ensure that no backsliding occurs

from implementation of adopted, currently feasi-

ble measures that EPA has approved as part of a

SIP in the past, or currently feasible measures

that EPA has added to state plans on its own

initiative or pursuant to a court order of settle-

ment, including a Federal] Implementation Plan.

We do not intend that this Savings clause requires

EPA to finalize the Federal Implementation Plan

in California and preempt the states and regional

air quality planning that is ongoing in the Los

Angeles area and will otherwise be required un-

18a

der this legislation. If EPA were to promulgate

complete new plans based on requirements of

the old Act, the areas subject to those federal

plans would be deprived of the opportunity to use

the significantly revised and clearly more work-

able requirements of the new legislation. We

agree that this would be unreasonable, particu-

larly since the proposed FIP fails to-recognize the

critical role that local governments play in re-

ducing transportation-related emissions.

The savings clause provides EPA with sig-

nificant discretion with respect to FIPs in Cali-

fornia. EPA has the obligation to adopt control

measures for sources which it exclusively controls

when those controls are necessary to help attain

national standards or meet other requirements of

the Act. But, beyond that, EPA should complete

ongoing FIP processes only for the purposes of

ensuring that the standards are met by the stat-

utory deadlines.

136 Cong. Ree. S16970 (daily ed. Oct. 27, 1990).

Senator Chafee made an almost identical statement.

See 136 Cong. Rec. $17,237 (daily ed. Oct. 27, 1990).

IEPA relies on the portion of Senator Baucus’ state-

ment that says “[w]le do not intend that this savings -

clause requires EPA to finalize the Federal Imple-

mentation Plan in California... .” It is clear from

what follows this statement, however, that Senator

Baucus’ concern is that the FIP not “preempt the

states and regional air quality planning that is on-

going in the Los Angeles area and will otherwise

he required under this legislation.”” As we noted in

part II.B, supra, maintaining EPA’s obligation to

promulgate ozone and CO FIPs for the South Coast

Ce —

19a

will not have the effect of preempting state planning

or the new state submissions that are required under

the 1990 Amendments. Moreover, if EPA’s interpre-

tation of Senator Baucus’ statement js correct, it is

difficult to understand his reference towards the

end of the statement to EPA’s completing “ongoing

FIP processes.”

EPA’s interpretation is also contradicted by an-

other piece of legislative history that relates specifi-

cally to §110(c)(1) rather than to the Savings

Clause. In May, 1990, when the House deleted lan-

guage that would have made EPA’s obligation to

promulgate FIPs discretionary, EPA Administrator

Reilly wrote to House Speaker Foley:

The House has [deleted] language that relieved

EPA of its current obligations to complete federal

implementations plans (FIP’s). If current FIP

obligations are not relieved, EPA must impose

across-the-board, draconian measures devastating

the country’s largest industrial area. In light of

the new regime for state plan submissions, it

makes no sense for EPA to impose FIPs before

the states have had a chance to meet their new

obligations. For these reasons, the Administra-

tion strongly objects to the Committee’s approach,

136 Cong. Rec. H2771, H2887 (daily ed. May 23,

1990). Thus, EPA complained directly to Congress

that unless the language of §110(c)(1) were

changed, EPA would have to promulgate FIPs for

the South Coast. However, Congress declined to change

the language of the statute. At a minimum, this letter

and Congress’ response to it show that it is not in-

consistent with Congress’ intent to require completion

20a

of ongoing FIP processes since Congress adopted lan-

guage that EPA said would have precisely that effect.

We may only speculate about what Congress would

think of EPA’s current litigation position, which

directly contradicts its representation to Congress.

EPA also argues that we should defer to its inter-

pretation of the statute because it is the administering

agency. See Chevron USA Inc. v. NRDC, 467 U.S.

837, $43-45 (1984). Under Chevron, we are required

first to exhaust the ‘traditional tools of statutory

construction” to determine if Congress has spoken to

the precise question at issue. /d. at 843 n.9. “If the

intent of Congress is clear, that is the end of the

matter.” Jd. at 842-43. In this case, the plain lan-

vuage of § 110(c) (1) expresses Congress’ intent that

KPA promulgate a FIP when it has previously dis-

approved a SIP.

However, even if we were to conclude that Con-

gress had no intent on the question, it is doubtful

that EPA’s interpretation of § 110(c)(1) would be

entitled to deference. Its current interpretation is

in direct conflict with the interpretation that it ex-

pressed to Congress. See INS v. Cardoza-Fonseca,

480 U.S. 421, 446 n.30 (1987); Watt v. Alaska, 451

U.S. 259, 272-73 (1981). This is not a case in which

the agency’s change of interpretation reflects accu-

mulated experience or responds to changing circum-

stances. See Rust v. Sullivan, 111 S. Ct. 1759, 1769

(1991). Nor has the agency justified this change

with “reasoned analysis.” Jd. This is simply a case

in which the agency, having failed to get Congress to

2la

adopt its position, asks the court to do what Congress

would not.

In sum, we hold that EPA js currently obligated to

promulgate ozone and CO FIPs for the South Coast

under the plain terms of § 110(c)(1)(B) based on

its disapproval of California’s proposed SIPs in Jan-

uary 1988. Accordingly, we reverse the decision of

the district court. We remand with instructions that

the district court reinstate the settlement agreement

and establish an expeditious schedule for the promul-

gation of final FIPs for the South Coast. In establish-

ing the schedule, the district court should bear in

mind that promulgation of these FIPs has already

been delayed far beyond the statutory deadline, that

EPA has already published proposed FIPs for the

South Coast, and that the deadline for promulgation

of final FIPs was only three months away when EPA

moved to vacate the settlement agreement.

IT]

We turn last to the question of attorney’s fees.

In an unpublished order, the district court denied

appellants’ motion for fees in large part. We review

the award or denial of attorney’s fees for abuse of

discretion, but any elements of legal analysis and

statutory interpretation which figure in the district

court’s decision are reviewable de novo. Keith v. .

Volpe, 833 F.2d 850, 854 (9th Cir. 1987). We will

reverse if the district court misperceives or misapplies

the law governing fee awards. Ackerley Communica-

tions v. City of Salem, 752 F.2d 1394, 1396 (9th

Cir. 1985).

22a

The district court denied appellants fees against

EPA for their work opposing the motion to vacate

the settlement agreement and dismiss the suit on the

ground that appellants had not prevailed in that

stage of the litigation. In light of appellants’ success

on appeal, we hold that they are entitled to fees for

their work below. ‘“‘| A] plaintiff who is unsuccessful

at a stage of litigation that was a necessary step to

[its] ultimate victory is entitled to attorney’s fees

even for the unsuccessful stage.”’ Cabrales v. County

of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991).

The district court also denied appellants fees

against EPA for their work opposing EPA’s motion

to extend the deadlines under the settlement agree-

ment for the proposed and final FIPs. The district

court granted EPA’s motion to extend the deadline

for the proposed FIPs because of the disruption

caused by the 1989 San Francisco earthquake. It

denied without prejudice EPA’s motion to extend

the deadline for the final FIPs. The district court

concluded that appellants’ opposition to the motions

was both unsuccessful and unreasonable. We hold

that the district court did not abuse its discretion

in doing so.

The district court awarded fees against EPA for

only 24 hours of work preparing the motion for fees

because the court thought it was unreasonable for

appellants to move for fees without first attempting

a fee settlement. However, local rules do not require

parties to confer before filing for fees. In fact, local

rule 16.10 requires that motions for fees be filed

within 30 days of judgment. Furthermore, in their

motion for fees, appellants invited EPA to make an

offer regarding fees rather than litigate the matter.

EPA responded by choosing to litigate. The Supreme

23a

Court has stated that “lijdeally, of course, litigants

will settle the amount of the fee.” Hensley v. Ecker-

hart, 461 U.S. 424, 437 (1983). However, this pref-

erence for settlement is not embodied in any binding

rule. The district court’s decision to limit fees for the

fee motion on the basis that appellants failed to

attempt settlement elevates this preference to the

Status of a court rule. As such, the decision is a

misapplication of law that is not shielded under the

abuse of discretion standard. See Ackerley, 752 F.2d

at 1396. We hold that the district court erred in

limiting the fees for preparing the fee motion to

24 hours. EPA’s argument that these fees should be

reduced because the fee motion was only partially

successful should be addressed to the district court on

remand.

Finally, the district court denied appellants fees

against Southern California Edison for their work

opposing Edison’s intervention of as plaintiff.’* The

language of 42 U.S.C. $ 7604(d) does not preclude

an award of fees against a private intervenor. How-

ever, “special care” is called for when awarding fees

against a private party rather than a government

entity because of “[d]iffering abilities to bear the

cost of legal fees and differing notions of responsi-

bility for fulfilling the goals of the Clean Air Act.”

Ruckelshaus v. Sierra Club, 463 U.S. 680, 692 n.12

(1983). The D.C. Circuit has held that fees against

a private intervenor are not appropriate if the in-

tervenor “took a position that reasonably attempted

to advance the implementation of the Act.” NRDC

v. Thomas, 801 F.2d 457, 462 (D.C. Cir. 1986):

'?EPA has taken no position on the question whether

appellants are entitled to fees against Edison.

24a

Sierra Club v. EPA, 769 F.2d 796, 810 (D.C. Cir.

1985). We believe this test is sound. Applying it to

the facts of this case, we hold that appellants are not

entitled to fees against Edison. While Edison’s posi-

tion differed in many respects from the position ad-

vanced by appellants, it was reasonably consistent

with advancing the implementation of the Clean Air

Act. Accordingly, we affirm the district court’s deci-

sion denying fees against plaintiff-intervenor Edison.

For the reasons stated herein, the decision of the

district court vacating the settlement agreement and

dismissing the case is REVERSED. The case is

REMANDED for reinstatement of the agreement.

On remand the district court is instructed to establish

an expeditious schedule for promulgation of final

ozone and CO FIPs for the South Coast consistent

with this opinion. The district court’s order denying

attorney’s fees is AFFIRMED in part and RE-

VERSED in part.

NOONAN, Circuit Judge, dissenting:

This case turns on the meaning of an act of Con-

gress. In determining that meaning we need not go

beyond the text if, as I believe, the text is clear.

In particular, I see no need to rely on the statements

of Senators Baucus and Chafee or to take into account

the statement, made in the course of legislative bar-

gaining in May 1990, by EPA Administrator Reilly.

These statements serve only to confirm what anyone

would know, that Congress was acutely aware of the

air pollution problem of the South Coast and legis-

25a

lated with that problem in mind. The meaning of the

statute, however, does not depend on the Senators’

or the Adnunistrator’s gloss.

The Background Litigation.

On January 22, 1988, EPA disapproved Califor-

nia’s SIPs for the South Coast ozone and carbon

monoxide levels. On February 22, 1988 the Coalition

for Clean Air and the Sierra Club (“the Coalition” )

brought suit against EPA seeking an order under

the Clean Air Act Amendments of 1970 (the 1970

Amendments), directing EPA under 42 U.S.C. § 7410

a FIP for the South Coast that would provide for

the attainment of the then existing air standards

for ozone and carbon monoxide. On February 13,

1989, the parties entered into a “Stipulation and

Agreement of Partial Settlement” (‘the Settlement”).

The EPA agreed to publish its tentative FIP in the

Federal Register by April 30, 1990 and to set forth

its final implementation plan in the Federal Register

by February 28, 1991. The suit was stayed till

March 31, 1991. The parties reserved the right to

argue to the court the effect of any legislation that

might be passed by Congress during the stay.

The Coalition had the right under the Settlement

to move the court to vacate the stay if EPA did not

keep the agreed deadlines. EPA did not observe the

deadlines. The district court extended the date for

the tentative FIP to July 31, 1990. EPA actually

filed it in September 1990. The final FIP was never

published. .

In November 1990 Congress enacted the Clean Air

Act Amendments of 1990 (“the 1990 Amendments’”’ ).

26a

The stay was never vacated, and it continued to be

in effect when on November 30, 1990 EPA brought

this action to vacate the settlement and dismiss the

Coalition’s complaint.

The Repeal of Section 7410(c) of the 1970 Amend-

ments.

The following language of the 1970 Amendments

was deleted by the 1990 Amendments:

(1) The Administrator shall, after considera-

tion of any state hearing record, promptly pre-

pare and publish proposed regulations setting

forth an implementation plan, or portion thereof,

for a State if—

(A) the State fails to submit an imple-

mentation plan which meets the require-

ments of this section,

(B) the plan or any portion thereof, sub-

mitted for such State is determined by the

Administrator not to be in accordance with

the requirements uf this section, or

notification by the Administrator or such

longer period as he may prescribe, to revise

an implementation plan as required pursu-

ant 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

27a

such plan (or revision thereof), promulgate any

such regulations unless, prior to such promul-

gation, such State has adopted and submitted a

plan (or revision) which the Administrator de-

termines to be in accordance with the require-

ments of this section. Notwithstanding the

preceding sentence, any portion of a plan relat-

ing to any measure described in the first sentence

of section 7421 of this title (relating to con-

sultation) or the consultation process required

under such section 7421 of this title shall not be

required to be promulgated before the date eight

months after such date required for submission.

It was this language that imposed a zategorical

obligation on EPA to issue a FIP if a state defaulted

on its obligation to provide a suitable SIP. It was

this language on which the Coalition had relied in

the suit that resulted in the Settlement. With the

excision of this language by Congress the foundation

of the Settlement disappeared.

New Section 7410(c) of the 1990 Amendments.

Congress in 1990 rewrote Section 7410(c) as

follows:

(1) The Administrator shall promulgate a Fed-

eral implementation plan at any time within 2

years after the Administrator—

(A) finds that a State has failed to make

a required submission or finds that the plan

or plan revision submitted by the State does

not satisfy the minimum criteria established

under section 7410(k) (1) (A).

The 1990 Amendments imposed an obligation of

EPA to issue a FIP within 2 years of a state’s de-

28a

fault, rather than the obligation to do so “promptly”

or within six to eight months as the 1970 Amend-

ments required. The 1990 Amendments triggered this

obligation by reference to an entirely new part of

the law, §$ 7410(k). The provision required EPA to

set ‘minimum criteria” for any state plan and to

do so “within 9 months after the enactment of the

Clean Air Act Amendments of 1990.”

Alternatively, the EPA acquired the obligation to

issue a FIP “within 2 years after the Administrator

. . . (B) disapproves a State implementation plan

in whole or in part, unless the State corrects the

deficiency, and the Administrator approves the plan

or revision, before the Administrator promulgates

such Federal implementation plan.” Section 7410(c)

(1) (B).

It is this language that the Coalition now relies

on. It is the language that the Coalition maintains

imposes the same obligation on EPA that existed

under the 1970 Amendments. It is this language

that the Coalition argues is to be understood as

applicable not only to future but to past disapprovals

of State plans by EPA.

Comparison of the new language with the old dis-

pels the Coalition’s contention. First, it is doubtful

that a verb in the present tense, ‘disapproves,’ can

be read as a verb in the past tense, “has disapproved.”

Gwaltney indicates that it should not be so read.

Gwaltney & Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49, 59 (1989). Second,

the old language provided that the EPA should

“promptly” move to publish a FIP once the Adminis-

trator had determined that the State plan was not

“in accordance with the requirements of this sec-

tion.” The new language gives EPA two years within

29a

which it should issue a FIP. Third, the old language

gave the State 60 days or a longer period prescribed

by EPA to correct a provision of the plan relating

to air quality control. The new language permits the

State to correct any deficiency without any time limit

being prescribed short of the two years set by the

statute for EPA’s action. The old statute has been

repealed. The new statute is certainly comparable,

but its language is future-looking and its commands

different from the old.

This conclusion comes from inspection of (B), the

fragment of the new law on which the Coalition re-

lies. The conclusion is reinforced if the new law is

inspected more broadly. To begin with, the Coalition

argues as though new (A) were not on the books.

There is no reason to ignore (A). It gives a cross-

reference to another new and important part of the

1990 Amendments, Section 7410(k)(1)(A). This

section begins, ‘‘Within 9 months after the date of the

Clean Air Act Amendments of 1990, the Adminis-

trator shall promulgate minimum criteria that any

plan submission must meet before the Administrator

is required to act on such submission under this

section.” Beyond dispute, EPA’s obligations here are

set in terms of the date of enactment of the 1990

/.mendments. To suppose that its obligations under

(B) are not is to do violence to the sense of the

statute.

Section 7410(k), to which A makes cross-refer-

ence, goes on to lay out an elaborate timetable for

EPA action in regard to State plans that do or do

not meet the minimum criteria. The Coalition’s nar-

row focus on B reads this timetable out of the law.

On the Coalition’s reading, none of Section 7410(k)

has any relevance because EPA disapproved Cali-

30a

fornia’s SIP in 1988. The Coalition’s reading makes

otiose as regards a major area of the country the

careful prescriptions of the 1990 Amendments. By

every canon of construction A and B should be read

harmoniously and as a whole.

The Coalition argues that “Section 110c [Section

7410(d)] was not new.” Read as simply B of the

new Section 7410(c), it was new. Read again as

both A and B of the new Section 7410(c), it was

new. The contention that it was not disregards the

text of the statute.

Other Relevant Changes Made by the 1990 Amend-

ments.

The 1977 Amendments to the Clean Air Act re-

quired a State to attain the required air quality

standards by December 31, 1987. 42 U.S.C. § 7502

(a) (2) (as of 1977). It was California’s failure to

provide for this attainment that led EPA to dis-

approve the State’s SIP. The date set by the 1977

Amendments was eradicated by the 1990 Amend-

ments. The South Coast must now demonstrate at-

tainment with the carbon monoxide standard by 2000

and with the ozone standard by 2010, 42 U.S.C.

§ 7512(a)(1). The new statute removes the basis

for the Settlement. The Coalition in its Opening and

Reply Briefs fails to address this substantial change

in the law.

The 1990 Amendments also provide a detailed

timetable in accordance with which California must

move to the attainment of the goals to be achieved by

2000 and 2010. This timetable is set in explicit refer-

ence to the date of the enactment of the 1990 Amend-

ments, see, e.g., 42 U.S.C. § 751la(c), (d) and (e).

3la

It makes nonsense of the provisions of this timetable

to superimpose upon them the Settlement which de-

pends on the 1970 and 1977 Amendments.

For the first time the new law permits EPA to

approve, in a statutorily defined Extreme Area (such

is the South Coast for ozone), provisions of a SIP

which “anticipate development of new control tech-

niques,” provided that “such provisions are not neces-

sary to achieve the incremental emission reductions

required during the first 10 years after the date of

the Clean Air Act Amendments of 1990.” 42 U.S.C.

§ 75lla(e) (5). Again, the timing is set in terms of

the 1990 Amendments. Again, something different

has been added. EPA had disapproved California’s

SIPs in terms of the old law that left no such possi-

bility for technological breakthroughs. It would again

make nonsense of the new law to hold that the old

disapproval must continue in effect despite the relax-

ation of the standards effected by the 1990 changes.

The Clean Air Act of 1960 proclaimed that “the

prevention and control of air pollution at its source

is the primary responsibility of state and local gov-

ernments.” 42 U.S.C. § 7401(a)(3) (unamended).

The Act stated one of its purposes was “to provide

technical and financial assistance to state and local

governments in connection with the development and

execution of their air pollution prevention and control

programs.” 42 U.S.C. § 7401(b)(3) (unamended).

The 1990 Amendments left (b)(3) unchanged. The

1990 Amendments amended (a) (3) to declare “that

air pollution prevention (that is, the reduction or

elimination, through any measures, of the amount of

pollutants produced or created at the source) and

air pollution control at its source is the primary re-

sponsibility of state and local governments.” 42

32a

U.S.C. § 7401(a) (3) (1990)). In the face of this

ringing assertion of state primacy, the Coalition’s

argument for federal action stands the legislation on

its head.

The Clean Air Act in its original form and as

amended in 1990 specifies that the State has primary

responsibility for satisfying pollution requirements

and requires it to develop a plan in the first instance.

That applies to the new requirements enacted in 1990.

California must have an opportunity to address these

requirements before EPA steps into the breach.

The Savings Clause.

The Coalition’s fallback position, not reached by

the majority opinion, is that the 1990 Amendments

contain what is styled “General Savings Clause.”

This part of the statute reads as follows:

General savings clause

Each regulation, standard, rule, notice, order

and guidance promulgated or issued by the Ad-

ministrator under this Act, as in effect before

the date of the enactment of the Clean Air Act

Amendments of 1990 shall remain in effect

according to its terms, except to the extent other-

wise provided under this Act, inconsistent with

any provision of this Act, or revised by the Ad-

ministrator. No control requirement in effect,

or required to be adopted by an order, settlement

agreement, or plan in effect before the date of

the enactment of the Clean Air Act Amendments

of 1990 in any area which is a containment area

for any air pollutant may be modified after such

enactment in any manner unless the modification

PNG iii ica ammaemNEN

33a

insures equivalent or greater emission reductions

of such air pollutant.

42 U.S.C. § 7515.

The only possibly relevant language is the single

sentence that speaks of a “control requirement”

“required to be adopted by an order, settlement agree-

ment or plan in effect before the date of the enact-

ment of the Clean Air Act Amendments of 1990... .”

But even this language does not help the Coalition.

A “control requirement” is a term of art. A control

requirement is ‘fa discrete regulation directed at a

source of pollution.” 56 Fed. Reg. 828 (January 9,

1991). In the same way, the 1990 Amendments

under the caption ‘‘Control requirements” speak of

the regulations imposed on “a unit,” eg., a fossil

fuel-fired combustion device, 42 U.S.C. § 7651k(1)

and § 7651a(15).

A control requirement is not a FIP. The Settle-

ment Agreement required EPA to promulgate a FIP.

The Settlement Agreement did not require the adop-

tion of any particular control requirement. The

General Savings Clause, therefore, does not save the

Settlement Agreement.

To the contrary, the regular rule expressio unius,

exclusio alterius applies. Congress enumerated what

it wanted to survive the repeals effected by the 1990

Amendments. As the majority opinion correctly

notes, Congress did not repeal the basis for existing

FIPs. The 1990 Amendments specifically preserved

every regulation in effect before the date of the

amendments. The Settlement Agreement that merely

required a FIP was not a regulation and it was not

a control agreement. It was not spared.

34a

Expressio unius, exclusio alterius—this standard

method of interpreting a statute was first invoked

here by the Coalition. But its application defeats the

Coalition’s reading of the 1990 Amendments. Sav-

ing regulations and control requirements, Con-

gress deliberately and decisively omitted the kind of

settlement the Coalition relies on.

Conclusion.

There is no one, I suppose, who does not desire a

cleaner, brighter, healthier South Coast. Attainment

of the goal, however, is not without substantial costs.

The conflict that the costs have caused is refiected in

the actions of EPA and in the congressional legisla-

tion. The Coalition makes much of the delay in

achieving acceptable standards for ozone and carbon

monoxide. It accuses EPA of “footdragging’” and

even of “entrenched footdragging,” a difficult accom-

plishment. But even if the courts could supply what

the Coalition sees as the missing will in the agency,

the courts cannot supply a will that is not present in

the legislation. In a major economic and _ political

battle Congress has chosen the path of slow progress.

It is not the task of judges to produce a different

rate of attainment. The district court properly dis-

missed the Coalition’s suit.

On the assumption that the majority opinion re-

mains the law, I concur in the judgment as to at-

torney’s fees.

35a

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Date 1/9/91

Case No. CV&88-4414-HLH

COALITION FOR CLEAN AIR ET AL.

Vv.

ENVIRONMENTAL PROTECTION AGENCY

DOCKET ENTRY

[Entered Jan. 9, 1991]

THIS CONSTITUTES NOTICE OF ENTRY

AS REQUIRED BY FRCP, RULE 77(d).

Present:

Hon. Harry L. Hupp, Judge

MILLI BORGARDING, Deputy Clerk

Attorneys Present for Plaintiffs:

ALAN WALTNER

36a

Attorneys Present for Defendants:

KAREN L. EGBERT, DOJ & Ian Fan, AUSA—

for EPA

For Defts-in-Intervention: COLIN LENNARD for

SCAQMD; PETER M. GREENWALD for SCAQMD;

H. Mos.ey for S.C. Gas Co.; R. LANNEN for

S.C. Edison

Proceedings:

EPA’S MOTION TO VACATE SETTLEMENT

AGREEMENT AND DISMISS THE COM-

PLAINT

ORDER (also, if applicable, findings and memoran-

dum opinion) :

The motion to vacate the settlement agreement and

dismiss the action is granted. The action is dis-

missed.

The question is whether Congress, in enacting the

1990 amendments to the Clean Air Act (hereafter

the ‘“‘Act’’), intended to require that a Federal Im-

plementation Plan (FIP) prepared under the new

criteria in the amended Act be promulgated by EPA

before there is rejected for non-compliance with the

Act by EPA a State Implementation Plan (SIP)

hereafter to be prepared under the new criteria and

timing schedules in the amended version of the Act.

Under the former version of the Act, the State’s

plan for the South Coast Air Basin (SCAB) was

rejected (Abramowitz 9 Cir ’87 832 F2d 1071) and

EPA acquired the obligation under the former ver-

sion of the Act to prepare a FIP. Plaintiffs brought

this action to compel EPA to prepare the FIP. EPA

recognized its obligation to do so, and an agreement

37a

was entered into, approved by the court on March 28,

1989, which set the date for promulgation of the FIP

by EPA, since extended to Feb. 28, 1991. In Sep-

tember, 1990, EPA published in the Federal Register

its tentative FIP for comment. However, Congress

passed extensive amendments to the Act which were

signed into law by the President on Nov. 15, 1990.

The amendments to the Act change numerous stand-

ards which States must meet, set forth new schedules

for the submission of SIP’s, and continues the pro-

vision that if the State fails to submit a plan, or a

State SIP is disapproved, the EPA shall prepare an

FIP (now, within 2 years of disapproval) or may

instead approve a State proposed revision of the SIP

(this latter provision is significant because it is clear

that California continues to submit significant re-

visions to its rejected SIP to EPA, including the epo-

chal 1989 plan developed by South Coast Air Quality

Manayement District (SCAQMD)). Thus, the

method of enforcement (a federal plan if the state

does not come up with an acceptable one) is preserved

from the former Act, but EPA has more time, oppor-

tunity, and flexibility to develop its own plan or

approve State modifications. The difficulty presented

by this motion is that Congress did not expressly say

whether it intended to start the SIP process over

again or not, and it is, therefore, in question whether

it is Congress’ intent in this circumstance that EPA

must follow through on the presently pending FIP,

even though the State has not had an opportunity to

develop its own plan under the new criteria and

schedules.

It must be said that the statute is ambiguous. The

court makes this determination not alone from the

fact that both EPA and plaintiffs argue that the stat-

38a

ute is crystal clear and unambiguous—their way.

Amended § 110 provides in part that:

“The Administrator shall promulgate a Federal

implementation plan at any time within 2 years

after the Administrator- ... (B) disapproves a

State implementation plan in whole or in part

Plaintiffs argue that there is no ambiguity here be-

cause the EPA disapproved the old SIP in 1988, and

that the EPA plainly owes everyone concerned a FIP.

What makes the language ambiguous, however, is

that the legislation revamped the schedule for sub-

mission of SIPs, allowing time in the future to sub-

mit the same and plainly assumes that States which

did not have approved SIPs, or imposed FIPs, at the

date of the amendments to the Act, were to submit

them within the new timetables set forth in the Act.

The question, then, is which rejected SIP is the re-

vised §110 now referring to—the one which was

rejected in 1988 or the new one which must be sub-

mitted under the new criteria and on the new time

schedule? The answer is not provided by a reading,

literal or otherwise, of § 110. However, the structure

of the amended Act, with revamped criteria and tim-

ing for SIPs, and with an obvious policy that the

States are encouraged to take the lead, with the po-

tential FIP to be the stick that drives them, is clear.

There is an additional reason to believe that revised

§ 110 refers to the new SIP to be prepared by the

States under the revised criteria. If the Act were

interpreted otherwise, there would be the anomaly

that the SIP prepared by the State under the former

criteria and rejected is to be replaced by a FIP pre-

39a

pared under the new criteria that the State has never

had an opportunity to address. In view of Congres-

sional policy to have States take the lead on prepara-

tion of plans, such an interpretation seems less likely

than the contrary. From this, it is logical to conclude

that the SIP referred to in § 110 is the new SIP re-

quired of the States and referred to in other amend-

ments to the Act. The court so concludes.

The court is aided in reaching this result by the

usual rule that an administrative agency’s interpre-

tation of ambiguous legislation is to be given heavy

weight. (Chevron USA, Inc. ’84 467 US 837, 81

LEd2d 694, 703.)

The Congressional history is inconclusive. Plaintiffs

point out that EPA strongly pushed revision of § 110

to make the FIP discretionary, or eliminate the re-

quirement that one be promulgated on State failure,

and that Congress expressly declined to adopt the

EPA view. This circumstance appears irrelevant to

the question posed on this motion to the court. There

is no doubt at all that under the amended Act EPA

must prepare a FIP on failure of a state to propose

one meeting the requirements of the Act, but the ques-

tion which remains is to what SIP does the Act refer

to in imposing this responsibility.

Plaintiffs (joined in this respect by SCAQMD) also

argue that the “savings” clause, § 193, preserves the

order of this court. That section provides that no

“control requirement” in effect before the effective

date of the 1990 amendments to the Act is to be modi-

fied afterward “unless the modifications insures

equivalent or greater emission reductions of such air

pollutant”. It is apparently argued that the require-

ment that EPA promulgate a FIP is a “control re-

quirement”, or at least there would be requirements

40a

if the FIP were adopted. ‘Control requirement” is

not defined in the Act, but the court thinks that the

phrase cannot lend itself to the pending requirement

that EPA propose a FIP or to the hypothetical con-

tents of the FIP if one had been adopted before the

amendments to the Act, for the reason that there is

no present specification of the details of control of

various sources of emission control. Thus, it is deter-

mined that § 193 does not affect the question at issue.

In connection with the interpretation of § 198,

the SCAQMD raises some troublesome concerns.

SCAQMD notes some severe practical problems which

will ensue if EPA does not move forward with a FIP

which places limitations on sources of pollution be-

yond state control and exclusively subject to federal

regulation (i.e., ships, aircraft, autos made for sale

in the other 49 states, etc., referred to generally as

“federal pollution’). It is asserted (without any ap-

parent contradiction) that control of such sources is

a prerequisite if the ambient air standards are to be

met at all, and that even if the revised SIP presently

pending before the EPA is fully implemented, this

federal component can only be regulated by EPA.

Thus, in SCAQMD’s view, a FIP is a necessity even

though SIP modifications presently proposed by the

State may take care of pollution sources within state

control. This concern is troublesome because Congress

does not appear to have dealt with it at all. The Con-

gressional plan is to require States to adopt an SIP,

and does not appear to recognize, at least in the stat-

ute, that Federal controls may also be necessary, al-

though there is a new provision giving EPA permis-

sion to issue a partial FIP to fill in the gaps in a

state SIP. Presumably, this provision could be used

to cover “federal pollution’, but § 193 does not re-

4la

quire this type of FIP to be issued at this time, as

urged by SCAQMD. The requirement that a FIP be

adopted is only triggered by an inadequate SIP.

SCAQMD contemplates a coordinated State and Fed-

eral plan. It argues that § 193 should be interpreted

at least to require EPA to adopt now the necessary

Federal part of the plan even though further SIPs

may be developed on the delayed schedule allowed by

Congress. This view is supported by quotations from

Senators Chaffee and Baucus, which assert somewhat

ambiguously that § 193 means substantially that. The

difficulty is that the statute failed to incorporate any-

thing close to what the senators apparently thought

was in the Act. § 110 was left virtually and ambigu-

ously untouched, and the savings clause says nothing

about EPA’s obligation to adopt a FIP for Federal

sources of pollution while letting-the states proceed

on their revised SIPs.

Senator Baucus was Chairman of the Conference

Committee which resolved the differences between the

House and Senate versions. His commentary, while

apparently not a formal committtee report, thus has

somewhat more relevance to Congress’ intent than

would a stray statement made in floor debate by an

individual Senator. He said:

“We do not intend that this savings clause [§ 193]

requires EPA to finalize the state’s and regional

air quality planning that is ongoing in the Los

Angeles area and will otherwise be required under

this legislation. If EPA were to promulgate com-

plete new plans based on the requirements of the

old Act, the area subject to those federal plans

would be deprived of the opportunity to use the

42a

significantly revised and clearly more workable

requirements of the new legislation. We agree

that this would be unreasonable, particularly

since the proposed FIP fails to recognize the

critical role that local governments play in reduc-

ing transportation-related emission.

The savings clause provides EPA with significant -

discretion with respect to FIPs in California.

EPA has the obligation to adopt control measures

for sources which it exclusively controls [i.e.,

“federal pollution” ] when those controls are nec-

essary to help attain national standards or meet

other requirements of the Act but, beyond that,

EPA should complete ongoing FIP processes only

for the purposes of ensuring that the standards

are met by the statutory deadlines.”

The statement of Senator Chaffee in answer to the

questions of Senator Wilson on the Senate floor was

to the same effect. The statement is moderately clear

until one comes to the second paragraph. The amended

Act does not appear to have told EPA to go ahead

and adopt a FIP for “federal pollution” while waiting

for the state to finish the revised SIP. The first para-

gcaph makes it clear, however, that the savings clause

(and, by implication, § 110) does not require EPA to

develop an entire new FIP until the State proposes a

revised SIP. SCAQMD suggests that this statement

be used to interpret the savings clause as requiring

EPA to promulgate a FIP on federal sources of pollu-

tion while continuing to work on the State SIP for

state sources. The language used, however, is not

susceptible to this interpretation, and this approach,

even if considered desirable, is not required by the

amended Act.

43a

All parties verbally accept the axiom that this court

may not make policy. In this they are correct; the

court may do only what it believes Congress has

authorized or required, even though the parties and

it may have other ideas as to what Congress should

have done. The court must disregard the occasional

and tempting invitations of the parties to construe

the legislation to achieve what is believed to be desir-

able ends. As best the court can interpret the in-

tentions of Congress, the EPA does not now have to

proclaim a FIP.

The motion is granted. EPA is to submit forth-

with an order vacating the settlement agreement and

order and dismissing the action.

B:1884414TR.17

44a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 91-55383

91-55386

COALITION FOR CLEAN AIR; ET AL.,

PLAINTIFFS-APPELLANTS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL., DEFENDANTS-APPELLEES

ORDER

[ Filed Sep. 11, 1992]

Before: GOODWIN, NORRIS, and NOONAN, Circuit

Judges

Judges Goodwin and Norris have voted to deny the

petition for rehearing. Judge Norris has voted to

reject the suggestion for a rehearing en banc, and

Judge Goodwin has recommended the same. Judge

Noonan would grant the petition for rehearing and

accept 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 on the suggestion for rehearing en

bane. Fed. R. App. P. 35(b).

The petition for rehearing is DENIED, and the

suggestion for a rehearing en banc is REJECTED.

45a

APPENDIX D

STATUTORY PROVISIONS INVOLVED

Section 101 of the Clean Air Act, 42 U.S.C. 7401,

provides:

(a) Congressional findings

The Congress finds—

(1) that the predominant part of the Na-

tion’s population is located in its rapidly

expanding metropolitan and other urban

areas, which generally cross the boundary

lines of local jurisdictions and often extend

into two or more States;

(2) that the growth in the amount and

complexity of air pollution brought about by

urbanization, industrial development, and

the increasing use of motor vehicles, has

resulted in mounting dangers to the public

health and welfare, including injury to agri-

cultural crops and livestock, damage to and

the deterioration of property, and hazards to

air and ground transportation;

(3) that air pollution prevention (that is,

the reduction or elimination, through any

measures, of the amount of pollutants pro-

duced or created at the source) and air pol-

lution control at its source is the primary

responsibility of States and local govern-

ments; and

(4) that Federal financial assistance and

leadership is essential for the development of

cooperative Federal, State, regional, and lo-

cal programs to prevent and control air

pollution.

46a

(b) Declaration of purpose

The purposes of this subchapter are—

(1) to protect and enhance the quality of

the Nation’s air resources so as to promote

the public health and welfare and the pro-

ductive capacity of its population;

_(2) to initiate and accelerate a national

research and development program to achieve

the prevention and control of air pollution;

(3) to provide technical and financial as-

sistance to State and local governments in

connection with the development and execu-

tion of their air pollution prevention and

control programs; and

(4) to encourage and assist the develop-

ment and operation of regional air pollution

prevention and control programs.

A primary goal of this chapter is to encourage

or otherwise promote reasonable Federal, State,

and local government actions, consistent with the

provisions of this chapter, for pollution preven-

tion.

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

110(c), provides:

Preparation and publication by Administrator of

proposed regulations setting forth implementa-

tion plan; parking surcharge; plan implemen-

tation

(1) The Administrator shall promulgate a

Federal implementation plan at any time within

2 years after the Administrator—

47a

(A) finds that a State has failed to make

a required submission or finds that the plan

or plan revision submitted by the State does

not satisfy the minimum criteria established

under section 7410(k)(1)(A) of this title,

(B) disapproves a State implementation

plan submission in whole or in part,

unless the State corrects the deficiency, and the

Administrator approves the plan or plan revision,

before the Administrator promulgates such Fed-

eral implementation plan.

Section 193 of the Clean Air Act, 42 U.S.C. 7515,

provides:

Each regulation, standard, rule, notice, order

and guidance promulgated or issued by the Ad-

ministrator under this chapter, as in effect before

November 15, 1990 shall remain in effect accord-

ing to its terms, except to the extent otherwise

provided under this chapter, inconsistent with

any provision of this chapter, or revised by the

Administrator. No control requirement in effect,

or required to be adopted by an order, settlement

agreement, or plan in effect before November 15,

1990 in any area which is a nonattainment area

for any air pollutant may be modified after No-

vember 15, 1990 in any manner unless the modifi-

cation insures equivalent or greater emission re-

ductions of such air pollutant.

wv U. S. GOVERNMENT PRINTING OFFICE; 1992 342479 60078

6S ee Cade ahs RARE eo

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.