Ninth Circuit Approves Air Quality Analysis for Expressway Connecting 405 Freeway and Ports of Long Beach and Los Angeles

November 17th, 2014

By: Chris Butcher



In NRDC v. United States Department of Transportation, 2014 U.S. App. LEXIS 20815, the Ninth Circuit Court of Appeals affirmed the district court’s summary judgment in favor of the U.S. Department of Transportation (DOT) and other federal and state defendants (defendants). The court held defendants’ environmental review of an expressway connecting the ports of Los Angeles and Long Beach with the 405 freeway did not violate the Clean Air Act (CAA) and National Environmental Protection Act (NEPA).

As part of the environmental review, defendants conducted an air quality analysis, which included the project’s impact on a fine particulate matter known as PM2.5. The CAA requires the analysis to ensure the project does not cause or contribute to a violation of air quality standards “in any area.” Because there was no PM2.5 receptor in the immediate vicinity of the project, defendants based their data analysis on a receptor five miles away from the project. NRDC contended this violated the CAA because “any area” should be interpreted as requiring a PM2.5 analysis immediately adjacent to the project.

After finding the plain meaning of “any area” was ambiguous in the statute, the court looked to the DOT and U.S. Environmental Protection Agency’s (EPA) interpretation of the phrase. NRDC contended several regulations required the narrow interpretation of “any area.”  However, none of the regulations specifically addressed PM2.5. Thus, the court was not persuaded that the regulations decisively required the analysis within the immediate vicinity during the time defendants conducted the air quality analysis.

Instead, the court looked to guidelines for analyzing PM2.5 levels jointly published by the DOT and EPA in the Federal Register. The court stated the guidelines “implicitly, but authoritatively” interpreted the meaning of “any area” in the context. The guidelines provided several examples of acceptable PM2.5 analysis methods including examples using different locations with similar characteristics. NRDC offered no reason why the court should not rely on the jointly published guidelines. Accordingly, the court held it was reasonable for defendants’ to use the nearby monitor.

The court next rejected NRDC’s argument that defendants violated NEPA because the EIS relied on outdated air quality standards and failed to fully disclose the project’s likely effects on public health. Although the EPA cut the maximum permissible level of PM2.5 in 2006, the new standard did not apply until 2010 and defendants completed the EIS in 2009. The EIS also acknowledged that PM2.5 levels exceeded the new standard, but stated any increase in PM2.5 would be offset by the reduced vehicle congestion from the expressway.

KEY POINT

The CAA does not require PM2.5 analysis to be based on impacts immediately adjacent to a project when the nearest sensitive receptor is not located adjacent to the project.  Although courts look to regulations published in the Code of Federal Regulations first for interpretation of ambiguous statutory phrases, reliance on other sources is permitted in circumstances such as this when guidelines have been published in the Federal Register and clarify the meaning of an otherwise undefined statutory term.