Com. of Va. v. Browner

Page 869

80 F.3d 869

42 ERC 1353, 64 USLW 2618, 26 Envtl.

L. Rep. 21,245

COMMONWEALTH OF VIRGINIA, Petitioner, v. Carol M. BROWNER, Administrator, U.S. Environmental Protection Agency; Environmental Protection Agency, Respondents American Lung Association of Northern Virginia, and American Lung Association of Virginia; Clean Water Action; Friends of the Rivers of Virginia; the James River Association Mountain Heritage Alliance; Valley Concerned Citizens Virginia Chapter of the Sierra Club; Virginia Citizen Action; Virginia Consortium For Clean Air; Virginia Council, Trout Unlimited; Environmental Defense Fund Incorporated; Kathleen F. Derricott; Clifton E. Derricott; Andre L. Brown; Caleata Johnson; Gwen Hedgepath; Audubon Naturalist Society, Intervenors. Virginia Manufacturers Association; Washington Legal Foundation; Ogden Martin Systems of Lancaster, Incorporated; Ogden Martin Systems of Alexandria, Incorporated; National Independent Energy Producers; Ogden Martin Systems of Montgomery, Incorporated; Ogden Martin Systems of Fairfax, Incorporated; Chesapeake Bay Foundation, Amici Curiae.

No. 95-1052.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 4, 1995.

Decided March 26, 1996.

On Petition for Review of an Order of the United States Environmental Protection Agency.

ARGUED: Mary Jo Leugers, Assistant Attorney General, Richmond, Virginia, for Petitioner. David Jay Kaplan, Environmental Defense Section, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Respondents. Katherine E. Slaughter, Southern Environmental Law Center, Charlottesville, Virginia, for Intervenors. ON BRIEF: James S. Gilmore, III, Attorney General, John Paul Woodley, Jr., Deputy Attorney General, Roger L. Chaffe, Senior Assistant Attorney General, John R. Butcher, Assistant Attorney General, Richmond, Virginia; John P. Schmitz, Thomas Dilenge, Mayer, Brown & Platt, Washington, D.C., for Petitioner. Lois J. Schiffer, Assistant Attorney General, Ronald Spritzer, Robin M. Richardson, Environmental Defense Section, Environment & Natural Resources Division, United States Department Of Justice, Washington, D.C.; Michael W. Thrift, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C.; Cecil A. Rodrigues, Office of Regional Counsel, United States Environmental Protection Agency, Philadelphia, Pennsylvania, for Respondents. Deborah Murray Wassenaar, Southern Environmental Law Center, Charlottesville, Virginia; David S. Bailey, Lawyers Committee For Civil Rights Under Law, Washington, D.C., for Intervenors. Carol C. Raper, Vice President and General Counsel, Virginia Manufacturers Association, Richmond, Virginia; George A. Somerville, Mays & Valentine, Richmond, Virginia, for Amicus Curiae Virginia Manufacturers Association. Daniel J. Popeo, David A. Price, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation. Deborah E. Jennings, Michael C. Carter, Norman L. Rave, Piper & Marbury, Baltimore, Maryland, for Amici Curiae National Independent Energy Producers, et al. Roy A. Hoagland, Virginia Assistant Director/Staff Attorney, Chesapeake Bay Foundation, Inc., Richmond, Virginia, for Amicus Curiae Chesapeake Bay Foundation.

Before MURNAGHAN and M. BLANE MICHAEL, Circuit Judges, and JAMES H. MICHAEL, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Petition for review denied by published opinion. Circuit Judge M. BLANE MICHAEL wrote the opinion, in which Judge MURNAGHAN and Senior District Judge JAMES H. MICHAEL, Jr., joined.

OPINION

M. BLANE MICHAEL, Circuit Judge:

The Commonwealth of Virginia petitions for review of the Environmental Protection Agency's final action disapproving Virginia's proposed program for issuing air pollution permits. Specifically, Virginia challenges EPA's finding that Virginia has failed to comply with Title V of the 1990 Amendments to the Clean Air Act (sometimes "CAA" or the "Act"), CAA §§ 501-507, 42 U.S.C §§ 7661-7661f, because Virginia's proposal lacks adequate provisions for judicial review of the Commonwealth's permitting decisions. Virginia also challenges the constitutionality of Title V and its sanctions provisions, CAA §§ 179(b) & 502(d), 42 U.S.C. §§ 7509(b) & 7661a(d). According to Virginia, these provisions improperly commandeer the legislative processes of the states, in violation of the Tenth Amendment and the Spending Clause, U.S. Const. art. I § 8, cl. 1. We have jurisdiction over all of Virginia's claims, see CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1), and we find them to be without merit.

I.

A.

Because Virginia claims that the EPA has misinterpreted Title V and that Title V is unconstitutional as well, a brief discussion of the statute's structure and purposes is in order.

Title V's key provision, CAA § 502, 42 U.S.C. § 7661a, prohibits major stationary sources of air pollution from operating either without a valid permit or in violation of the terms of a permit. ¹ The permit is crucial to the implementation of the Act: it contains, in a single, comprehensive set of documents, all CAA requirements relevant to the particular polluting source. Clean Air Act Amendments of 1990: Chafee-Baucus Statement of Senate Managers (Conf.Rep. No. 952, 101st Cong., 2d Sess.) ("Chafee-Baucus Statement "), reprinted in 136 Cong. Rec. S16933, S16983 (daily ed. Oct. 27, 1990). In a sense, a permit is a source-specific bible for Clean Air Act compliance.

Title V of the Act contemplates that states will administer and enforce the permitting program:

[T]he permit program is predicated on the principle that the primary responsibility for its day-to-day administration will rest squarely with state and local air pollution agencies. While EPA has an important role of providing guidance and general oversight, the agency should not unduly interfere with states' implementation of the permit program.

Chafee-Baucus Statement at S16983.

States are directed to submit for EPA approval their own programs for issuing permits. CAA § 502(d)(1), 42 U.S.C. § 7661a(d)(1). EPA may not approve a proposed permit program unless it meets certain minimum criteria set out in CAA § 502(b), 42 U.S.C. § 7661a(b). Among other things, states must design a standard permit application form ( § 502(b)(1)), adequately staff and fund the permit program ( § 502(b)(4)), develop a plan to ensure permit compliance ( § 502(b)(5)), provide public access to documents submitted in support of permit applications ( § 502(b)(8)), and provide for review in state courts of permitting decisions ( § 502(b)(6)).

If a state fails to submit a permit program, or submits a permit program that EPA disapproves for failure to comply with CAA § 502(b), the state becomes subject to sanctions designed to encourage compliance. CAA § 502(d), 42 U.S.C. § 7661a(d). ²

One sanction deprives states of certain federal highway funds. CAA § 179(b)(1), 42 U.S.C. § 7509(b)(1). However, the state loses no funds that would be spent in regions that are in "attainment" within the meaning of the Act. ³ CAA § 179(b)(1)(A), 42 U.S.C. § 7509(b)(1)(A). And, even within "nonattainment" areas, funds remain available for highway projects that "resolve a demonstrated safety problem and likely will result in a significant reduction in, or avoidance of, accidents." Id. Finally, federal funds may be spent on many other types of transportation projects within nonattainment areas, including:

(i) capital programs for public transit;

(ii) construction or restriction of certain roads or lanes solely for the use of passenger buses or high occupancy vehicles;

(iii) planning for requirements for employers to reduce employee work-trip-related vehicle emissions;

(iv) highway ramp metering, traffic signalization, and related programs that improve traffic flow and achieve a net emission reduction;

(v) fringe and transportation corridor parking facilities serving multiple occupancy vehicle programs or transit operations;

(vi) programs to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mechanisms, vehicle restricted zones or periods, or vehicle registration programs; (vii) programs for breakdown and accident scene management, nonrecurring congestion, and vehicle information systems, to reduce congestion and emissions; and

(viii) such other transportation-related programs as the [EPA] Administrator, in consultation with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle capacity. In considering such measures, the State should seek to ensure adequate access to downtown, other commercial, and residential areas, and avoid increasing or relocating emissions and congestion rather than reducing them.

CAA § 179(b)(1)(B), 42 U.S.C. § 7509(b)(1)(B).

A second sanction increases the pollution offset requirements already imposed on private polluters within ozone nonattainment areas. Normally, new major stationary sources of pollution may not be operated within nonattainment areas (and existing stationary sources may not be modified if the modification would increase emissions) unless pollution from other sources is reduced to offset increased pollution from the new or modified source. In regions of "marginal" nonattainment with respect to ozone, 110 tons of old pollution must be eliminated for every 100 additional tons of new pollution (a ratio of 1.1:1). CAA § 182(a)(4), 42 U.S.C. § 7511a(a)(4). In regions of "moderate" nonattainment, 115 tons of old pollution must be eliminated for every additional 100 tons of new pollution (a ratio of 1.15:1). CAA § 182(b)(5), 42 U.S.C. § 7511a(b)(5). In regions of "serious," "severe," or "extreme" nonattainment with respect to ozone, 120 tons of old pollution must be...