In Ass’n of Irritated Residents v. United States EPA (9th Cir. 2012) 686 F.3d 668, the Ninth Circuit granted a petition challenging federal Environmental Protection Agency’s (EPA) decision to approve the 2003 SIP Revision on each of the three grounds alleged by the Petitioner. Specifically, Petitioner alleged (1)EPA’s failure to order California to submit a revised attainment plan for the South Coast after it disapproved the 2003 Attainment Plan was arbitrary and capricious; (2) EPA’s approval of PEST-1 violates the Clean Air Act because the control strategy adopted by the state lacks enforceable commitments; and (3) EPA violated the Act by failing to require transportation control measures to combat the increase in vehicle miles traveled (VMT). In this blog, we address the Court’s holding as to this third issue.
The Los Angeles-South Coast Air Basin is classified as an extreme non-attainment area for ozone as defined by the Federal Clean Air Act (Act). The Act contains requirements applicable to nonattainment areas, depending on the severity of the ozone problem in the area. (42 U.S.C. §§ 7511-7511f.) One of the requirements for nonattainment areas is to develop enforceable transportation strategies and control measures “to offset any growth in emissions from growth in vehicle miles traveled . . . and to attain reduction in motor vehicle emissions as necessary.” (Id. § 7511a(d)(1)(A).) Suggested transportation control measures include programs for improved public transit, restrictions of certain lanes for high occupancy vehicles, and programs for secure bicycle storage facilities. (Id. § 7408(f)(1)(A).) In California’s 2003 SIP Revision, the state concluded that no transportation control measures were required based on California’s demonstration that there would be no growth in aggregate vehicle emissions. The Federal Environmental Protection Agency (EPA) agreed.
In the litigation, all parties agreed that in the Los Angeles-South Coast Air Basin aggregate motor vehicle emissions are, and will continue to, decrease consistent with the Act notwithstanding the fact that VMTs are projected to increase by approximately 30%. The question before the Court was the meaning behind the statutory requirement for transportation strategies and control measures “to offset any growth in emissions from growth in vehicle miles traveled . . . and to attain reduction in motor vehicle emissions as necessary.” (Id. § 7511a(d)(1)(A).) The EPA argued that the Act only required a State to establish that aggregate vehicular emissions will decrease and that, as long as such reductions are established, VMTs may continue to increase. The Court disagreed. The Court explained that the statute’s use of the word “growth” in reference to both “emissions” and “vehicle miles traveled” suggests two baselines: one pegged to changes in emissions and the other pegged to changes in VMT. While the Court concluded there is no ambiguity in the statutory provision that requires consulting legislative history to reject the EPA’s contrary interpretation, the Court nevertheless undertook a review of the legislative history and concluded that it too supported the Court’s interpretation. The Court, thus, held “[b]ecause the statutory language, clearly supported by legislative history, demonstrates that Congress has spoken directly to the question at issue, we do not owe deference to EPA’s interpretation….”
For severe nonattainment areas a State must require transportation control measures to address increases in both aggregate emissions level and VMTs.
Written By: Tina Thomas and Chris Butcher
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