IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAYVIEW HUNTER'S POINT COMMUNITY ADVOCATES, COMMUNITIES FOR A BETTER ENVIRONMENT, LATINO ISSUES FORUM, OUR CHILDREN'S EARTH FOUNDATION, SIERRA CLUB, TRANSPORTATION SOLUTIONS DEFENSE AND EDUCATION FUND, and URBAN HABITAT, a project of the TIDES CENTER,
METROPOLITAN TRANSPORTATION COMMISSION,
On Appeal From a Judgment of the United States District Court, for the
Northern District of California, No. C-01-0750 TEH
PETITION FOR REHEARING
WITH SUGGESTION FOR REHEARING EN BANC
DEBORAH S. REAMES (S.B. No. 117257
ANNE C. HARPER (S.B. No. 176202)
426 171h Street, 5th Floor
Oakland, CA 94612
Tel: 510.550.6725; Fax: 510.550.6749
Attorneys for all Plaintiffs
SUMA PEESAPATI (SB. No. 203701)
Communities for a Better Environment
1611 Telegraph Avenue, Suite 450
Oakland, CA 94612
Tel: 510.302.0430; Fax: 510.302.0438
Attorney for Plaintiff Communities for a Better Environment
ALAN M. RAMO (SB. No. 063425)
HELEN H. KANG (SB. No. 124730)
Environmental Law & Justice Clinic
Golden Gate University School of Law
536 Mission Street
San Francisco, CA 94105
Tel: 415.442.6693; Fax: 415.896.2450
Attorneys for Plaintiffs Communities for a Better Environment and Our Children's
MARC S. CHYTILO (SB. No. 132742)
Post Office Box 92233
Santa Barbara, CA 93190
Tel: 805.682.0585; Fax: 805.682.2379
Attorney for Plaintiff Transportation Solutions Defense & Education Fund
TABLE OF CONTENTS
SUMMARY OF BACKGROUND....2
I. Because Nothing In The "Plain Language" of TCM 2 Establishes That The 15% Ridership Increase Target Is Unenforceable, The Court Departed from Settled Circuit Law In Refusing To Consider EPA's Interpretation As To The Enforceability Of The Measure....4
A. The Term "Target" May Create An Enforceable Obligation....4
B. Because TCM 2's Plain Meaning "Is Not Free From Doubt," The Court Was Required To Accord EPA's Interpretation of the Measure Substantial Deference Under This Circuit's Well-Settled Canons of Regulatory Construction....7
II. The Court's Analysis of TCM 2's "Larger Regulatory Scheme" Is Based On A Material Error Of Law With Respect To the Clean Air Act's Distinction Between "Attainment" And "Reasonable Further Progress" Requirements....9
III. The Court's Interpretation Of TCM 2 Nullifies The Clean Air Act's Requirements That All SIP Measures Be Enforceable And Lead to Emissions Reductions....12
IV. The Court's Interpretation of TCM 2 Directly Conflicts With Established Jurisprudence Governing Enforceable SIP "Strategies" And Unenforceable SIP "Goals."....16
TABLE OF AUTHORITIES
1000 Friends of Maryland v. Browner, 265 F.3d 216 (4th Cir. 2001)....6
Action for Regional Transit v. West Side Highway, 699 F.2d 614 (2d Cir. 1983)....16
American Lung Ass'n v. Kean, 670 F. Supp. 1285 (D. N. J. 1987), aff'd 871 F.2d 319 (3dCir. 1989)....5,13
Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777 (3d Cir. 1987)....17
Conservation Law Found. v. Busey, 79 F.3d 1250 (1st Cir. 1996)....17
Council of Commuter Orgs. v. Metropolitan Transp. Auth., 683 F.2d 663 (2d Cir. 1982)....13,17
Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976)....11,13
Illinois Envtl. Protection Agency v. EPA, 947 F.2d 283 (7th Cir. 1991)....17
Labor/Community Strategy Ctr. v. Los Angeles County Metropolitan Transp. Auth., 263 F.3d 1041 (9th Cir. 2001)....6
McCarthy v. Thomas, 27 F.3d 1363 (9th Cir. 1994)....14
Oregon Paralyzed Veterans v. Regal Cinemas, Inc., 339 F.3d 1126 (9th Cir. 2003)....7
Providence Health Sys. v. Thompson, 353 F.3d 661 (9th Cir. 2003)....7, 8
Sierra Club v. EPA, 315 F.3d 1295 (11th Cir. 2002)....14
Trustees for Alaska v. Fink, 17 F.3d 1209 (9th Cir. 1994)....13
United States v. Akzo Coatings, 949 F.2d 1409 (6th Cir. 1991)....6
Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)....13
Wards Cove Packing Corp. v. National Marine Fisheries SerV., 307 F.3d 1214 (9th Cir. 2002)....7
Western Oil & Gas Ass'n v. EPA, 633 F.2d 803 (9th Cir. 1980)....4
Wilder v. Thomas, 854 F.2d 605 (2d Cir. 1988)....17
Clean Air Act, 42 U.S.C. §§ 7401 et. seq....passim
FEDERAL REGISTER NOTICES
46 Fed. Reg. 7182, 7186 (Jan. 22, 1981)....10,14,16
50 Fed. Reg. 33535, 33538 (Aug. 20, 1985)....14
54 Fed. Reg. 13682, 13683 (April 5, 1989)....14
55 Fed. Reg. 49309, 49310 (Nov. 27, 1990)....13
62 Fed. Reg. 26460, 26462 (May 14, 1997)....13
Bayview Hunters Point Community Advocates, et. al. ("Bayview Advocates") seek rehearing, with suggestion for rehearing en banc, of this Court's April 6, 2004 decision concerning issues of national importance under the Clean Air Act, 42 U.S.C. §§ 7401 et. seq. ("Act"). Reversing the trial judge, the Honorable Thelton Henderson, this Court held, with Judge Thomas dissenting, that Transportation Control Measure 2 ("TCM 2"), adopted in California's 1982 State Implementation Plan ("SIP"), requires the Metropolitan Transportation Commission ("MTC") to do no more than comply with the formalities of the measure's "implementation schedule," even though the Act and circuit-wide authority uniformly require that EPA-approved SIP measures be enforceable and lead to emissions reductions. In so holding, the Court refused even to consider the contrary interpretation of TCM 2 reached by EPA, the agency vested by Congress with exclusive authority to approve as federal regulations and to enforce SIPs under the Act.
Bayview Advocates submit that rehearing en banc is required because the Court's decision directly conflicts with the Act and with the uniform decisions of this and other appellate courts construing the Act. The Court's opinion undermines EPA's role in overseeing the Act's implementation, contravening this Circuit's well-established principles governing deference to the agency promulgating the regulation at issue. Further, the majority's analysis of TCM 2's "larger regulatory scheme" is based on a material error of law with respect to the Act's independent attainment and "reasonable further progress" requirements. The opinion, moreover, both directly conflicts with the Act's requirement and consistent appellate holdings that SIP measures must be construed to be enforceable and, when implemented, lead to emissions reductions, and also sharply departs from settled law governing the distinction between a SIP's specific "strategies" and its pollution reduction "goals." Finally, the opinion, if allowed to stand, will enable the states in this Circuit to represent to EPA that the measures they propose for inclusion in their SIPs are enforceable and lead to emissions reductions, but later unilaterally redefine those measures to be virtually meaningless should they prove difficult to implement. As such, the holding nullifies the Act's express provisions establishing the specific process by which a state may modify measures already approved by EPA as part of its SIP.
SUMMARY OF BACKGROUND 1
In 1982, MTC, the regional transportation planning authority for the San Francisco Bay Area, adopted TCM 2, a measure designed to reduce ozone pollution from cars and trucks by improving the region's public transit. As EPA has emphasized, vehicular travel is responsible for nearly half of ozone precursor emissions in the Bay Area, and control of vehicular emissions is critical to the region's strategy for attaining national ozone standards. EPA approved TCM 2 as a component of California's SIP, where it remains today, owing to EPA's express refusal of MTC's request to deem the measure "fully implemented" and thereby delete it from the SIP.
The emissions estimated to result from TCM 2 were predicated on a "target" transit ridership increase of 15% over 1982-83 ridership levels. At issue in this litigation is whether the 15% ridership increase must, as Bayview Advocates and EPA maintain, actually be achieved, or whether the ridership increase is merely an "unenforceable, aspirational objective." Slip. Op. 4315 n.3. This Court adopted the latter view, holding that TCM 2 imposed no "binding obligation on the part of MTC to achieve a specific increase in public transit ridership." Slip Op. 4316. Rather, the Court held, the only enforceable obligation imposed by TCM 2 was compliance with the measure's "implementation schedule." Slip Op. 4323.
I. Because Nothing In The "Plain Language" of TCM 2 Establishes That The 15% Ridership Increase Target Is Unenforceable, The Court Departed from Settled Circuit Law In Refusing To Consider EPA's Interpretation As To The Enforceability Of The Measure.
A. The Term "Target" May Create An Enforceable Obligation.
The Court's conclusion that TCM 2's "plain language" is unambiguous and "does not establish a mandatory requirement to increase transit ridership by a specified percentage," Slip Op. 4314, is based on an erroneous assumption that a "target" can never be enforceable. The Court notes that "[t]he expected ridership increase was never described as anything more than a 'target," Slip Op. 4313, and continues:
It would have been apparent at the time that TCM 2 was adopted that it might not be possible to achieve a 15% increase purely through productivity increases. [...] Indeed, that is probably why TCM 2 contained the word "target." Unable to be certain that implementation of the specific steps spelled out in TCM 2 would result in a specified level of ridership, the drafters of TCM 2 were careful enough not to characterize any given increase in ridership as an obligation.
Slip Op. 4315 (emphasis added). The Court reached this conclusion relying on traditional contract and tort principles regarding statements involving "a mere prediction of future events." Slip. Op. 4313-14. In doing so, the Court made a fundamental mistake contrary to the Act and applicable authority. The Court is charged in this case with interpreting a federal regulation promulgated by EPA. See Western Oil & Gas Ass 'n v. EPA, 633 F.2d 803, 805 (9th Cir. 1980) (once approved by EPA, SIP measures "become enforceable federal regulations"). Accordingly, the Court's reliance on canons of contract interpretation and principles of tort law in interpreting TCM 2 is, respectfully, inappropriate. See American Lung Ass 'n v. Kean, 670 F. Supp. 1285 (D. N. J. 1987), aff'd 871 F.2d 319 (3d Cir. 1989) ("SIP is not, in any meaningful sense of the term, a contract, in which obligations are created by mutual assent"). If contract principles governed judicial interpretation of SIPs, states would routinely indulge in artful writing, appearing to make "commitments," as MTC has done, only to avoid obligations when enforcement has commenced.
Nothing implicit in the word "target" indicates that by definition it is unenforceable or that it cannot be co-extensive with an "obligation." The ordinary meaning of the word "target" is a "goal to be reached." Webster's Unabridged Dictionary 1944 (2d. Ed. 1999). "Reach," in turn, means "to come to or arrive at in some course of progress, action." Id. at 1605. Finally, "goal" is defined as "the result or achievement toward which effort is directed; aim; end." Id. at 817. Thus, nothing in the plain meaning of "target" suggests that it is, as the majority asserts, merely an "aspiration," Slip. Op. 4315 n.5, a term defined as " a goal or objective desired." Webster's at 125. In fact, the true "plain meaning" of a ridership "target" suggests that it is a ridership level "to be reached." Id. at 1944.
Indeed, in various contexts, Courts of Appeals, including this Court, have construed the term "target" or "goal" as an enforceable commitment. See, e.g., Labor/Community Strategy Ctr. v. Los Angeles County Metropolitan Transp. Auth., 263 F.3d 1041, 1048-49 (9th Cir. 2001) (rejecting transit authority's argument that load factor "targets," as set forth in consent decree, were merely unenforceable "performance goals" based on reading of decree as a whole); 1000 Friends of Maryland v. Browner, 265 F.3d 216, 236 (4th Cir. 2001) (treating "targeted" emissions levels, as represented in SIP's reasonable further progress demonstration, as ceilings that cannot be exceeded); United States v. Akzo Coatings, 949 F.2d 1409, 1439-43 (6th Cir. 1991) (general "goal" set forth in CERCLA consent decree enforceable even though it does not set forth specific numeric standards).
Thus, whether a target is enforceable depends on how and where it is used within the relevant statutory or regulatory scheme. Bayview Advocates argued previously that although TCM 2 is not a model of clarity, to the extent that TCM 2's meaning is "plain," it must be read to impose a ridership increase requirement. They analyzed, in briefing and argument both before this Court and the District Court, TCM 2's language and purpose and evaluated the measure in the context of TCMs 1 and 3, which were adopted simultaneously and refer to and qualify TCM 2. For example, TCM 3 - a provision not even addressed by this Court specifies that MTC must seek to increase transit ridership beyond the levels "committed" in TCMs 1 and 2.
Bayview Advocates' interpretation is consistent with that of EPA, the District Court, which oversaw three years of litigation and issued three separate opinions in this matter, and one member of the Panel of this Court. This substantial disagreement among those who have considered the measure's "plain meaning" is further testimony to its ambiguity. In sum, because TCM 2 "is not drawn in blacks and whites but leaves significant gray areas unresolved, it is ambiguous." Providence Health Sys. v. Thompson, 353 F.3d 661, 666 (9th Cir. 2003) (citation and internal quotation marks omitted).
B. Because TCM 2's Plain Meaning "Is Not Free From Doubt," The Court Was Required To Accord EPA's Interpretation of the Measure Substantial Deference Under This Circuit's Well-Settled Canons of Regulatory Construction.
As this Court has held, courts "owe agency interpretations of their own regulations substantial deference. When the meaning of regulatory language is ambiguous, the agency's interpretation of the regulation controls so long as it is reasonable, that is, so long as the interpretation sensibly conforms to the purpose and wording of the regulations." Oregon Paralyzed Veterans v. Regal Cinemas, Inc., 339 F.3d 1126, 1131 (9th Cir. 2003) (emphasis added) (internal citations omitted). See also Wards Cove Packing Corp. v. National Marine Fisheries Serv., 307 F.3d 1214, 1218 (9th Cir. 2002) (agency's interpretation of its own regulations entitled to "high degree of deference"). Thus, "if 'the meaning of [regulatory] language is not free from doubt'- i.e., it is ambiguous -'the reviewing court should give effect to the agency's interpretation." Providence Health Sys., 353 F.3d at 665 (quoting Martin v. OSHRC, 499 U.S. 144, 150-51 (1991)) (emphasis added). Furthermore, "[t]his broad deference is all the more warranted" where "the regulation concerns a complex and highly technical regulatory program...in which the identification and classification of relevant criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns." Id. at 665.
In this case, EPA - the agency vested by Congress with responsibility for approving SIPs as federal law and enforcing their provisions - took the unequivocal position in an opinion letter that "TCM 2 will be fully implemented only when transit ridership increases by 15% from 1982-83 levels." MTCER0252-54. In that letter, EPA explained the statutory and regulatory bases for its opinion, analyzed the constituent parts of TCM 2, and specifically refuted MTC's interpretation of the measure. Id. This Court, however, flatly refused even to consider EPA's opinion because it determined that "the plain language of TCM 2 does not require MTC to increase ridership levels by 15%." Slip Op. 4322. But because, as set forth above, the meaning of "target" is clearly not free from doubt, the Court was required under its own precedent to accord a high degree of deference to EPA and plainly erred in refusing to take into account the agency's reasonable interpretation of the measure. 2
II. The Court's Analysis of TCM 2's "Larger Regulatory Scheme" Is Based On A Material Error Of Law With Respect To the Clean Air Act's Distinction Between "Attainment" And "Reasonable Further Progress" Requirements.
The majority buttresses its conclusion that TCM 2 imposes no enforceable ridership increase obligation with an erroneous analysis of "the larger regulatory scheme of which TCM 2 was a part," Slip Op. 4320, stating:
The existence of the 1982 SIP's contingency plan control measures and the availability of SIP revisions render unnecessary the inference of an enforceable ridership increase. [...] MTC's attainment of the NAAQS through implementation of contingency measures in the early 1990s, while it failed to obtain the 15% target, demonstrates that the target was not a mandated condition precedent to NAAQS attainment.
Id. (emphasis in original). Respectfully, the Court misunderstands the critical distinction between the Act's requirement that states make "reasonable further progress" toward attainment and the requirement that attainment be achieved.
Section 172(c)(6) of the Act requires a SIP to include "enforceable emissions limitations, and such other control measures...to provide for attainment." 42 U.S.C. § 7502 (c)(6). There is no dispute that TCM 2 is a control measure as defined by this section. Section 172(c)(2), on the other hand, requires a SIP to provide for "reasonable further progress" ("RFP"), which is defined as "such annual incremental reductions in emissions of the relevant air pollutant as are required ...for the purpose of ensuring attainment of the [NAAQS] by the applicable date." 42 U.S.C. § 7501(1) (emphasis added). As the Court correctly points out, if a state fails to make RFP, it must resort to contingency measures. Slip Op. 4320; 42 U.S.C. § 7502(c)(9). And, indeed, as MTC agrees, the contingency measures in the 1982 SIP were intended "to bring the region back to the RFP line." MTC Opening Brief 11.
Under the Act, however, a state's adoption of contingency measures to satisfy the Act's RFP requirement does not relieve it of its independent obligation to comply with the measures it committed to implement in order to attain the national standards. As EPA explained in setting forth the requirements for the 1982 submittals' RFP demonstrations: "Compliance with the reasonable further progress requirement does not authorize delays in implementation or adoption of any measures." 46 Fed. Reg. 7185, 7187 (Jan. 22, 1981). EPA elaborated on this statutory distinction in the opinion letter the Court chose to ignore, explaining that the Act's RFP provision "is an entirely separate obligation from attainment," and that, as a result, "MTC still has an obligation to implement the SIP provision requiring the 15% ridership increase and realize the emissions reductions resulting from that increase, which were needed for attainment then and remain so today." MTC-ER0253.
Thus, that the Bay Area briefly attained the NAAQS in the mid-1990s after having implemented contingency measures, emphatically does not "demonstrate that the target was not a mandated condition precedent to NAAQS attainment." Slip Op. 4320. 3 To achieve adequate emissions reductions to make RFP, MTC was required to, and did - following a court order - implement contingency measures. But to achieve adequate emissions reductions to reach and maintain attainment, MTC was, and continues to be, required either to fully implement TCM 2 or substitute another TCM, pursuant to the Act's express modification provisions, 42 U.S.C. 7410(n)(1), 7410(1), that ensures equal or greater emissions reductions. As the dissent correctly states, "MTC has had this option available to it for years, but has submitted no alternative proposals. Hence, TCM 2 remains in the SIP, and is enforceable until substituted." Slip. Op. 4326. See also Friends of the Earth v. Carey, 535 F.2d 165, 178 (2d Cir. 1976), vacated on other grounds, 552 F.2d 25 (2d Cir. 1977) (absent a formal, EPA-approved SIP revision, states are "relegated to a lone option: compliance").
The Court states that EPA's April 29, 1999 letter refusing MTC's request to remove TCM 2 from the SIP, MTC-ER0245-47, supports the notion that MTC was not "in violation of any of the TCMs." Slip. Op. 4321 n.6. The Court, however, clearly misunderstands EPA's letter. As set forth in that letter, EPA's basis for refusing to remove TCM 2 from the SIP was its judgment that TCM 2 by its nature contained ongoing obligations to reduce emissions. EPA explained that a TCM may be simply deleted from a SIP only if its emissions reductions are permanent, such as a TCM requiring construction of a BART extension. MTC-ER0247. EPA further explained all other TCMs - including TCM 2 - could be removed under section 110(1) of the Act only if MTC proposed and EPA approved a new, substitute measure providing equivalent or greater emissions reductions. But because MTC had proposed no such substitute measure, TCM 2 remains in the SIP, and, pursuant to EPA's opinion letter issued six months earlier - the very letter the Court refused to consider - the measure "will be fully implemented only when transit ridership increases by 15% from 1982-83 levels." MTC-ER0253.
III. The Court's Interpretation Of TCM 2 Nullifies The Clean Air Act's Requirements That All SIP Measures Be Enforceable And Lead to Emissions Reductions.
Having concluded that, by its "plain language," TCM 2 imposes no enforceable ridership increase obligation, the Court maintains that the measure's only enforceable provisions consist of its "four step implementation schedule." Slip Op. 4318 n.4; 4323. But this interpretation cannot be squared with the Clean Air Act's express requirements that SIP measures themselves not only be enforceable but also lead to emissions reductions.
The Clean Air Act provides and uniform appellate authority holds that all control measures, including transportation control measures, in a SIP must be submitted to EPA in "enforceable form." Trustees for Alaska v. Fink, 17 F.3d 1209, 1212 (9th Cir. 1994) (emphasis in original); 42 U.S.C. § 7502(c)(6) (a SIP "shall include enforceable emission limitations, and such other control measures, means or techniques" to provide for attainment) (emphasis added). See also American Lung, 871 F.2d at 322; Friends of the Earth, 535 F.2d at 169; Wall v. EPA, 265 F.3d 426, 428 (6th Cir. 2001); Council of Commuter Orgs. v. Metropolitan Transp. Auth., 683 F.2d 663, 670 (2d Cir. 1982).
Accordingly, if EPA determines that a proposed measure is not enforceable, it must disapprove that measure for inclusion in the relevant SIP. 42 U.S.C. § 7410(k)(3) (SIP may be approved only if it meets "all" of the applicable requirements of the relevant chapter, including that measures are "enforceable"). And this is precisely what EPA does as a matter of course. See, e.g., 62 Fed. Reg. 26460, 26462 (May 14, 1997) (disapproving measure for inclusion in California SIP where measure "may lead to rule enforceability problems" and was "vague"); 55 Fed. Reg. 49309, 49310 (Nov. 27, 1990) (disapproving proposed California SIP measure because it was "vague" and "allow[ed] for the possibility of alternative interpretations"); 50 Fed. Reg. 33535, 33538 (Aug. 20, 1985) (disapproving elements of Michigan's SIP as vague and unenforceable). Thus, once approved into a SIP, control measures must be presumed to be enforceable. See McCarthy v. Thomas, 27 F.3d 1363, 1369-70 (9th Cir. 1994) ("It is doubtful that the EPA would allow the Mass Transit Provisions to remain in the...SIP if it considered them unenforceable.").
Not only must EPA disapprove measures that are unenforceable, but it must also disapprove any measure that cannot lead to the emissions reductions specifically claimed for that measure. Under section 110(k), "EPA approves SIPs based in part on whether the specified emissions controls will enable the region to achieve the NAAQS by the applicable attainment deadline." Sierra Club v. EPA, 315 F.3d 1295, 1296 (11th Cir. 2002). As EPA explained in its guidance for regions submitting ozone SIPs in 1982: "The state must demonstrate that adoption and implementation of [control measures] will result in the attainment of the ozone and carbon monoxide standards by the most expeditious date practicable." 46 Fed. Reg. 7182, 7186 (Jan. 22, 1981). Thus, if any proposed measure, including a TCM, demonstrably cannot lead to the stated emissions reductions, EPA must disapprove that measure. See, e.g., 54 Fed. Reg. 13682, 13683 (April 5, 1989) (disapproving Pennsylvania SIP submission where state "failed to demonstrate" that emissions reductions would "result from permanent enforceable measures"). The Court's interpretation of TCM 2 as requiring no more than compliance with the measure's "implementation schedule," Slip Op. 4323, directly conflicts with these established principles. As the dissent points out, if only TCM 2's implementation schedule were enforceable,
then all that MTC could be required to do under TCM 2 is "consult" with operators, "seek to ensure" implementation of transit operators' 5-year plans through the Transportation Improvements Plan, and "monitor" ridership gains through RFP reports.[...] It is difficult to imagine that a transportation commission could ever be said to have failed to achieve such vague "requirements," such that [the] commission could actually be compelled to meet those "standards" by way of an enforcement action by EPA. This brand of "enforceability" is too attenuated and amorphous to serve the ultimate attainment of federal air quality standards, as envisioned by the statute.
Slip Op. 4324-25 (emphasis added).
The majority seems to suggest that a measure's implementation schedule alone may constitute an enforceable air pollution strategy. However, the Act expressly requires that a SIP "shall include enforceable emission limitations, and such other control measures, means or techniques...as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment. .." 42 U.S.C. § 7502(c)(6) (emphasis added). Moreover, EPA made clear in its guidance to states that their 1982 SIP submissions must include all reasonably available TCMs necessary for the expeditious attainment of the estimated emissions reductions for the transportation sector together with "commitments [and] schedules of key milestones...for implementation and operation and enforcement of adopted reasonably available control measures" i.e., an implementation schedule. 46 Fed. Reg. at 7187. Thus, it is the measures and the specific commitments that must lead to emissions reductions, not the schedules, specifically described and mandated by statute and regulation as separate requirements. The schedules are no more than simply the timetables for particular steps for accomplishing the measures.
MTC specified in TCM 1 that a 28% ridership increase was a "commitment." In TCM 2, MTC built on that by adding a second committed 15% ridership increase. In TCM 3, MTC agreed to seek to go beyond these "committed levels," conditional on obtaining additional funding. Under the Act and its implementing regulations, these commitments must be deemed fully and separately enforceable.
IV. The Court's Interpretation of TCM 2 Directly Conflicts With Established Jurisprudence Governing Enforceable SIP "Strategies" And Unenforceable SIP "Goals."
The Court purports to support its determination that the ridership increase target is unenforceable with citation to the well-settled principle that "the aims and goals of the SIP are not enforceable apart from the specific measures designed to achieve them." Action for Regional Transit v. West Side Highway, 699 F.2d 614, 616 (2d Cir. 1983). The Court then states: "TCM 2 clearly designated implementation of the productivity improvements outlined in the transit operators' five year plans as a specific SIP strategy to increase ridership, where ridership increases serve as a proxy for emissions reductions." Slip Op. 4318 (emphasis added).
If allowed to stand, this holding would be the first, in any circuit, to interpret a SIP's "goal" as anything other than attainment of the NAAQS themselves or generic introductory proclamations of the SIP's purpose. As the Second Circuit stated, "[t]he [Act's] statutory and regulatory language indicates that a 'transportation control measure' is designed to help achieve the goal of reducing pollution, and to assure attainment of the NAAQS." Wilder v. Thomas, 854 F.2d 605, 615 (2d Cir. 1988). Other appellate courts are uniformly in accord. See Illinois Envtl. Protection Agency v. EPA, 947 F.2d 283, 284-85 (7th Cir. 1991) (Act requires states to draft the SIP to achieve the "goal" of meeting NAAQS); Conservation Law Found. v. Busey, 79 F.3d 1250, 1258 (1st Cir. 1996) ("[S]uits can be brought to enforce specific measures, strategies, or commitments designed to ensure compliance with the NAAQS, but not to enforce the NAAQS directly."); Concerned Citizens of Bridesburg v. EPA 836 F.2d 777, 780 (3d Cir. 1987) (Act's goals are NAAQS); Council of Commuter Orgs., 683 F.2d at 670 (same).
Specific targets are the key enforceable markers that allow EPA to carry out its statutory duty to assure that SIPs are implemented and that allow citizens to hold agencies accountable as envisioned by Congress. As Judge Henderson stated, "Indeed, it is difficult to imagine anything that could be more specific than an identified numerical target measuring a change in a single variable." 177 F. Supp.2d 1011, 1026 n.14. If these specific targets are considered legally equivalent to the unenforceable broader goals of a SIP, accountability for these SIPs will be severely hampered.
For the foregoing reasons, Bayview Advocates urge rehearing, with suggestion for rehearing en banc, of this case.
Respectfully submitted on this 27th day of April, 2004,
Attorney for Plaintiffs-Appellees
The complete background of this case is set forth in the Court's opinion at 4305-13.
Moreover, it is apparent that the majority considered far more than TCM 2's "plain language" in forming its interpretation of the measure. For example, the Court weighed MTC's "external factor" argument, Slip. Op. 4314-15, engaged in structural analysis, Slip. Op. 4319-22, and considered one EPA opinion letter concerning MTC's proposed deletion of TCM 2, Slip. Op. 4321 n.6. Having considered these and other extra-textual sources, the Court had no reasonable basis for refusing to consider EPA's interpretation of the regulation it promulgated.
Indeed, the Bay Area quickly fell out of attainment in the mid-1990s, and EPA has recently signed, though not yet published, a final rule designating the region as nonattainment under the federal 8-hour ozone standard.
CERTIFICATE OF COMPLIANCE
I certify that pursuant to Circuit Rule 40-1, the attached petition for rehearing en bane is proportionately spaced, has a typeface of 14 points or more and contains 4,131 words.
DATED: April 27, 2004
Attorney for Plaintiffs-Appellees