California Lawyer, October 2002


Choked Off

A battle over air pollution restricts the flow of federal funds.

Southern California has long been known as the state's smoggier half, but a series of legal battles to the north is quickly brewing into what plaintiffs are calling an air-quality crisis in the Bay Area.

In July the Ninth Circuit granted a stay of the U.S. Environmental Protection Agency's (EPA) approval of a major component of the Bay Area's plan for cleaning up smog. The plan was developed to bring the Bay Area into compliance with standards set by the EPA, as required by the federal Clean Air Act. (Except for a brief period in the mid-1990s, the Bay Area has never met that standard.) Starting this month, however, the Bay Area, still without an approved plan, enters into what's called a "conformity lapse”—a rare, as well as highly undesirable, designation that restricts the use of federal transportation money flowing into the region to only those projects ensuring safety, cleaner air, or completion of a project phase already under way or under contract.

The logic here is that federal dollars should not be spent on transportation projects that worsen air quality—which bodes particularly badly for highway projects. It can also put a region's entire transportation planning process into a deep freeze. "In the absence of showing its air plan will work, the Bay Area must not spend federal transportation dollars on programs that exacerbate the problem," says Marc Chytilo, a Santa Barbara attorney who specializes in air quality and transportation law and is representing the coalition of environmental
and community groups that filed the main awsuit leading to the stay. Transp. Solutions Defense and Educ. Fund v U.S. EPA, Civ No. 02-70443.

The coalition argued that the plan is deficient because it details no methods for eliminating 26 tons of pollution a day, something the region needs to do if it wants to meet its goal. But this stay was just the second half of a one-two punch: Earlier, the same groups had convinced a federal judge to order Bay Area transportaion officials to abide by a provision in the previous air plan requiring a major increase in mass-transit ridership.

What's unusual about the Bay Area's predicament is that in addition to the citizens groups objecting to the EPA's approval, the Sacramento Air District has joined in with suits against the EPA and the California Air Resources Board (CARB), challenging their approvals of the air plan's budget for motor vehicle emissions. And the San Joaquin Valley Air District has also sued the CARB, charging, like the others, that the plan does not do enough to reduce smog and prevent it from blowing over to their skies-making their job of cleaning up their dirty air that much harder.

EPA counsel declined to discuss the lawsuits' merits, but in an official response to comments on the plan, the EPA asserts that approval of this component is separate from consideration of the plan as a whole. All told, at least five lawsuits are currently pending over Bay Area smog. Oral arguments in the Ninth Circuit case are scheduled for this month.

-Lucia Hwang