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United States Court of Appeals, Fourth Circuit
United States Court of Appeals, Fourth Circuit
3d 517
42 ERC 1001
Appeal from the United States District Court for the Eastern District of
Virginia, at Richmond. James R. SPENCER, District Judge. (CA-95-213).
ARGUED: Roger Lewis Chaffe, Senior Assistant Attorney General,
Office of the Attorney General, Richmond, Virginia, for Appellants.
Jeffrey Paul Kehne, Environment & Natural Resources Division, United
States Department of Justice, Washington, D.C., for Appellees. ON
BRIEF: James S. Gilmore, III, Attorney General of Virginia, John Paul
Woodley, Jr., Deputy Attorney General, Mary J. Leugers, Assistant
Attorney General, John R. Butcher, Assistant Attorney General, Office of
the Attorney General, Richmond, Virginia; John P. Schmitz, Andrew J.
Pincus, Charles A. Rothfeld, Gregory S. Walden, Thomas Dilenge,
Washington, D.C., for Appellants. Lois J. Schiffer, Assistant Attorney
General, David J. Kaplan, Albert M. Ferlo, Jr., Environment & Natural
Resources Division, United States Department of Justice, Washington,
I.
2
Virginia says, "This action arises out of two major ongoing disputes with EPA
regarding the Commonwealth's compliance with the federal [CAA]." One
dispute, according to the complaint, involves Virginia's "alleged failure to
develop and submit to EPA an approvable" vehicle inspection and maintenance
(I & M) program and a volatile organic compound (VOC) reduction plan for
Northern Virginia and Richmond. The other dispute involves Virginia's
"alleged failure to develop and submit to EPA an approvable Title V [stationary
pollution source] operating permit program." Compl. pp 1-2. Before we get to
jurisdiction--the only issue before us today--some discussion of the pollution
targeted here and CAA mechanisms for reducing that pollution is helpful.
3
The chief mischief-maker here is ozone, the pollutant that most often causes a
particular region's air to violate federal standards. Ozone is one of the primary
components of smog. In sufficiently high concentrations, ozone causes chest
pains, coughing, nausea, irritation of the throat and increased susceptibility to
respiratory infection. Clean Air Act Standards: Hearing Before the Subcomm.
on Health and the Environment of the House Comm. on Energy and Commerce
("Clean Air Act Standards Hearing "), 101st Cong., 1st Sess. 14-16 (1989)
(statement of Don R. Clay, EPA acting administrator for air and radiation).
Excessive ozone can also damage forests and food crops. Id. at 16-18.1
Ozone is formed when volatile organic compounds (VOCs) react with nitrogen
oxides in the presence of sunlight and heat. See Joseph Nordman, What Is
Chemistry? A Chemical View of Nature 306 (1974). "VOC is the collective
name given to pollutants that [contain carbon and] are gases at room
temperature." Dashefsky, supra at 259. Automobile exhaust is a VOC source.
See Nordman, supra at 315 (table).2 Although most nitrogen oxides are made
naturally, automobile exhaust increases atmospheric nitrogen oxide levels.
Nordman, supra at 314. Thus, automobile exhaust, as a source of both VOCs
and nitrogen oxides, is a major cause of increased ozone levels. Clean Air Act
Standards Hearing, supra at 30 (statement of Don Theiler, President, State and
Territorial Air Pollution Program Administrators); Dashefsky, supra at 196.
Because by 2010 the number of miles driven in the United States will increase
by an estimated 60 percent, the nation faces a real potential for ever-increasing
amounts of pollution from automobile exhaust. Clean Air Act Standards
Hearing, supra at 2 (statement of Rep. Waxman) ( "Gains we have made in the
past may be lost in an expanding cloud of auto exhaust." ).
The CAA authorizes the EPA Administrator to promulgate national ambient air
quality standards (NAAQS). CAA Secs. 108 & 109, 42 U.S.C. Secs. 7408 &
7409. An area that does not meet the minimum level of air quality mandated by
the NAAQS is considered to be a "nonattainment area." CAA Secs. 107(d) &
171(2), 42 U.S.C. Secs. 7407(d) & 7501(2). With respect to the pollutant
ozone, an area's degree of nonattainment may be classified as marginal,
moderate, serious, severe or extreme. CAA Sec. 181(a), 42 U.S.C. Sec. 7511(a).
By 1989 more than 90 of the nation's urban areas were in nonattainment of the
NAAQS for ozone, raising a health concern for as many as 95 million
Americans. Clean Air Act Standards Hearing, supra at 30 (statement of Don
Theiler). As a result, Congress in 1990 extensively amended the CAA in an
effort to cope with the increasingly severe problem of unhealthy ozone levels
throughout the country. See Clean Air Act Amendments of 1990, Pub.L. No.
101-549, 104 Stat. 2399.
7
The CAA's complex statutory and regulatory scheme calls upon the states to
shoulder a large portion of the difficult task of cleaning up the nation's air. The
1990 amendments extended deadlines (that had existed under earlier versions of
the CAA) for states to reach full attainment with respect to ozone levels and set
new deadlines for states to achieve lesser (but still nonattaining) reductions of
ozone. CAA Secs. 181-185B, 42 U.S.C. Secs. 7511-7511f. The 1990
amendments also encourage states to design and implement an operating permit
program intended to regulate stationary sources of air pollution, such as
factories and power plants. CAA Secs. 501-507, 42 U.S.C. Secs. 7661-7661f.
A.
8
Under Title I of the CAA, if a state has an area within it that EPA has classified
as being in moderate, serious or severe nonattainment with respect to ozone, the
state must devise and implement a "state implementation plan" (SIP) that
reduces VOC emissions within the area by 15 percent (a "15% Plan" ). CAA
Secs. 182(b)(1)(A)(i), 182(c) & 182(d); 42 U.S.C. Secs. 7511a(b)(1)(A)(i),
7511a(c) & 7511a(d). The SIP must include a program of vehicle inspection
and maintenance that will reduce automobile exhaust's contribution to air
pollution (an "I & M Program" ). CAA Sec. 182(b)(4), 42 U.S.C. Sec. 7511a(b)
(4).
Title I imposes sanctions on states that fail to comply with its provisions. States
may, for example, be prevented from spending federal highway money in
nonattainment areas. See CAA Secs. 110(m), 176(c) & 179(b)(1); 42 U.S.C.
Secs. 7410(m), 7506(c) & 7509(b)(1). This loss of highway money is automatic
and mandatory if the state fails to implement an adequate SIP within 24 months
of EPA's finding that a proposed SIP is deficient. CAA Sec. 179(b)(1), 42
U.S.C. Sec. 7509(b)(1). Even before this two-year period expires, EPA may
(after first going through a notice-and-comment rulemaking proceeding) block
the state from spending federal highway funds in nonattainment areas. CAA
Sec. 110(m), 42 U.S.C. Sec. 7410(m). However, highway money may not be
blocked--under either the mandatory or the discretionary sanction provisions-for projects that "likely will result in a significant reduction in, or avoidance of,
accidents." CAA Sec. 179(b)(1)(A), 42 U.S.C. Sec. 7509(b)(1)(A). Nor may
money be blocked if it is to be spent on transportation projects that would
encourage conservation and that would tend to result in less pollution from
automobiles, i.e., public transit programs, development of park-and-ride
facilities, construction of high-occupancy vehicle lanes and the like. CAA Sec.
A state's failure to submit a valid SIP also causes the EPA to subject private
industry to more stringent permitting requirements. CAA Sec. 179(b)(2), 42
U.S.C. Sec. 7509(b)(2). 3 This sanction is mandatory after 18 months and (as
with the highway sanction) is discretionary at any time after EPA has found a
proposed SIP to be inadequate. See CAA Sec. 110(m), 42 U.S.C. Sec. 7410(m).
11
Finally, if two years pass after a SIP is first found to be deficient or the state's
submission of a proposed SIP to EPA is found to be administratively
incomplete, EPA must impose a "federal implementation program" (FIP) on
those areas of a state that are in nonattainment. CAA Sec. 110(c), 42 U.S.C.
Sec. 7410(c). "The FIP provides an additional incentive for state compliance
because it rescinds state authority to make the many sensitive technical and
political choices that a pollution control regime demands." Natural Resources
Defense Council v. Browner, 57 F.3d 1122, 1124 (D.C.Cir.1995).
B.
12
13 opportunity for judicial review in State court of the final permit action by the
an
applicant, any person who participated in the public participation process ... and any
other person who could obtain judicial review of such [decisions] under State laws.
14
40 C.F.R. Sec. 70.4(b)(3)(x). EPA has said that states must allow permitting
decision challenges to be brought in state court by anyone who would have
Article III standing in a federal case. 59 Fed.Reg. 62324, 62325 (Dec. 5, 1994).
15
Once EPA rejects a proposed Title V permitting program, the state has 18
months to correct any problems EPA has with the proposed plan. If the state
does not correct the problems within 18 months, EPA must impose either the
highway sanction or the permitting sanction described above. CAA Sec. 502(d)
(2), 42 U.S.C. Sec. 7661a(d)(2). Six months later, if the problems remain
uncorrected, EPA must impose the remaining sanction. Id. In addition, EPA
may impose these sanctions earlier, but (as in the Title I context) it first must go
through a notice-and-comment rulemaking proceeding. Id. Finally, if EPA has
not approved a state's Title V Program by November 15, 1995 (five years after
enactment of the 1990 Amendments), EPA must promulgate and administer a
federal Title V permitting program (a FIP) within the state. CAA Sec. 502(d)
(3), 42 U.S.C. Sec. 7661a(d)(3).
II.
16
Because the Northern Virginia area has been in "serious" nonattainment with
respect to ozone levels, and because the Richmond area has been in "moderate"
nonattainment, Virginia is subject to Title I. Virginia is also subject to Title V.
17
EPA took final action by letter on January 20, 1994, finding that Virginia's Title
I (I & M and 15% Plan) submissions were incomplete, in part because Virginia
only submitted draft regulations to EPA instead of final, permanent regulations.
On December 5, 1994, EPA took final action disapproving on substantive
grounds Virginia's Title V Program, see 59 Fed.Reg. 62324 (Dec. 5, 1994), in
part because Virginia limited judicial review of permitting decisions to those
litigants who could prove that they had a "pecuniary and substantial interest" in
the outcome of the litigation. See Va.Code Sec. 10.1-1318(B).
18
19
The same day, January 9, 1995, that Virginia filed its complaint in district
court, the Commonwealth also filed a petition for review directly with this
21
Our holding depends on the scope of the portion of CAA Sec. 307(b)(1) that
says, "A petition for review of [any] ... final action of the [EPA] Administrator
under this chapter ... which is locally or regionally applicable may be filed only
in the United States Court of Appeals for the appropriate circuit." 42 U.S.C.
Sec. 7607(b)(1) (emphasis added). Virginia argues first that it "does not seek a
review of any final EPA action"; rather, it says, its "constitutional challenge is
directed to the statute itself." Br. of Appellant at 7. Second, Virginia claims that
in no event are constitutional challenges that would implicate final EPA action
limited to review in the circuit courts. Virginia is wrong on both counts.
22
We turn first to whether Virginia targets final EPA action in its complaint filed
in district court. A review of the complaint reveals that, although it seeks a
ruling that certain parts of the CAA are unconstitutional, the practical objective
of the complaint is to nullify final actions of EPA.
23
the second dispute came to a head "[o]n December 5, 1994,[when] EPA took
final action to disapprove the Commonwealth's Title V program ..., with the
main reason being the alleged defect in the judicial review provision." Id. p 58.
The complaint alleges that these final EPA actions will trigger various
sanctions, including loss of federal highway money, more stringent permitting
requirements for stationary sources of air pollution, and eventual federal
takeover of air quality regulations. Id. pp 39-53 & 84-93. According to Virginia,
the CAA sanctions scheme, triggered by the EPA final action here, violates the
Tenth Amendment, the Guarantee Clause and the Spending Clause. Id. pp 96113. Finally, in its prayer for relief Virginia seeks a declaration that the relevant
provisions of the CAA are unconstitutional and requests a preliminary and
permanent injunction preventing EPA from enforcing sanctions provisions
against Virginia.
24
A reading of the complaint thus leaves no doubt that Virginia seeks to reverse
final EPA action. Because jurisdiction under Sec. 307(b)(1) turns on whether
final agency action is the target of the challenger's claim, it is of no
consequence that Virginia has armed itself with the Constitution. See Natural
Resources Defense Council v. Reilly, 788 F.Supp. 268, 274 (E.D.Va.1992) (
"The reversing of a final action ... is the type of relief obtained in a court of
appeals, not a district court." ) There is simply no impediment to the
adjudication of constitutional issues through petitions for direct review of final
agency action in the circuit courts. See, e.g., Thunder Basin Coal Co. v. Reich, -- U.S. ----, ----, 114 S.Ct. 771, 780, 127 L.Ed.2d 29 (1994).
25
26
It is settled that "when Congress has chosen to provide the circuit courts with
exclusive jurisdiction over appeals from agency [actions], the district courts are
without jurisdiction over the legal issues pertaining to final [actions]--whether
or not those issues arise from the statutes that authorized the agency action in
the first place." Palumbo v. Waste Technologies Indus., 989 F.2d 156, 161 (4th
Cir.1993). CAA Sec. 307(b)(1) channels review of final EPA action
exclusively to the courts of appeals, regardless of how the grounds for review
are framed. See, e.g., Greater Detroit Resource Recovery Auth. v. U.S. E.P.A.,
916 F.2d 317, 321-23 (6th Cir.1990). See also Monongahela Power Co. v.
Reilly, 980 F.2d 272, 275 (4th Cir.1992) ( "Because [Sec. 307(b)(1) ] embodies
a grant of exclusive jurisdiction, it appears that if the District of Columbia
[Circuit] has jurisdiction over the present action, the district court does not." )
(quoting Environmental Defense Fund v. Thomas, 870 F.2d 892, 896-97 (2d
Cir.), cert. denied, 493 U.S. 991, 110 S.Ct. 537, 107 L.Ed.2d 535 (1989)).
27
Virginia makes several points in contending that Sec. 307(b)(1) does not, or at
least should not be allowed to, restrict final action review to the circuit courts.
28
First, Virginia suggests that the exclusivity of appeals court jurisdiction under
Sec. 307(b)(1) is undermined by the CAA's "citizen suit" provision, Sec. 304(a)
(2), 42 U.S.C. Sec. 7604(a)(2), which gives the district courts jurisdiction over
claims that the EPA Administrator has failed to perform a nondiscretionary act
or duty. Although Virginia could not file under Sec. 304(a)(2) here, it argues
that Sec. 304(a)(2)'s presence means that Congress did not intend that Sec.
307(b)(1) be given an "expansive reach." Br. of Appellant at 10. Virginia's idea
has been rejected. Courts have held that if Sec. 307(b)(1) review becomes
available in the circuit court, the district court loses jurisdiction under Sec.
304(a)(2). In Indiana & Mich. Elec. Co. v. EPA, 733 F.2d 489 (7th Cir.1984),
for example, the Seventh Circuit found that it alone had jurisdiction to
adjudicate challenges to an EPA decision approving a SIP revision. The court
of appeals' exclusive jurisdiction under Sec. 307(b)(1) displaced the district
court's citizen suit jurisdiction over a related claim. Id. at 490-91. City of
Seabrook v. Costle, 659 F.2d 1371 (5th Cir.1981), reached the same result.
There, the Fifth Circuit found that even if the district court's jurisdiction under
Sec. 304(a)(2) could have been invoked before EPA took final action, once the
"Administrator had issued his 'final rule' ... plaintiffs could seek review, as they
did, only in the court of appeals." 659 F.2d at 1373. Accord Natural Resources
Defense Council v. Reilly, 788 F.Supp. at 273-74.
29
Second, Virginia cites CAA Sec. 304(e) as further evidence that Congress
intended for district courts to retain concurrent jurisdiction over claims within
the scope of Sec. 307(b)(1). Section 304(e) provides in part:
30
Nothing
in this section [i.e., Sec. 304] shall restrict any right which any person ...
may have under any statute or common law to seek enforcement ... or to seek any
other relief....
31
42 U.S.C. Sec. 7604(e) (emphasis added). This section only means that the
citizen suit provision does not preempt any other available remedies. It has no
bearing on whether Congress intended for appeals court review under Sec.
307(b)(1), where available, to be exclusive. Moreover, Sec. 307(e), which
See 42 U.S.C. Sec. 7607(e) (emphasis added). See also Oljato Chapter of the
Navajo Tribe v. Train, 515 F.2d 654, 660-61 & n. 7 (D.C.Cir.1975) (Sec. 307
takes precedence over other CAA jurisdictional provisions); Center for Auto
Safety v. EPA, 558 F.Supp. 103, 104-05 (D.D.C.1983) (same).
34
Third, Virginia argues that we should ignore the plain command of Sec. 307(b)
(1) because Virginia's constitutional claims cannot receive "meaningful judicial
review," see McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S.Ct.
888, 898, 112 L.Ed.2d 1005 (1991), unless it can develop a factual record in the
district court. This argument has no merit. A count-by-count review of
Virginia's facial constitutional claims establishes that none requires the type of
factual development that Virginia advocates. In any event, this argument
overlooks the fact that circuit courts are empowered to remand direct review
cases to the agency for any necessary factual development. See CAA Sec.
307(c), 42 U.S.C. Sec. 7607(c).
35
Count One alleges that Congress, in enacting the Title V program, which
requires broad access to state courts, and Sec. 182, which imposes requirements
for VOC reduction plans and I & M programs for ozone nonattainment areas,
has "commandeered the processes" of Virginia's legislature and courts, in
violation of the Tenth Amendment. Compl. p 101. This claim appears to call
for a purely textual analysis without the need for a record.
36
Count Two alleges that the CAA sanctions provisions at issue here violate the
Guarantee Clause "because they are unlawful coercive and punitive measures
used to force States like the Commonwealth to comply with these
unconstitutional provisions." Id. p 106. As the district court noted, any
justiciable claim under Count Two will focus on "whether the language of the
CAA 'offers the States a legitimate choice rather than ... an unavoidable
command' " to enact and enforce the CAA's regulatory program. J.A. at 73
(quoting New York v. United States, 505 U.S. 144, 185, 112 S.Ct. 2408, 2433,
120 L.Ed.2d 120 (1992)). Again, we believe that this claim can be determined
without administrative fact-finding.
37
In Count Three Virginia claims that the CAA's highway funding sanctions
Fourth, Virginia argues that channeling of constitutional disputes into the courts
of appeals under Sec. 307(b)(1) puts states in a "jurisdictional straitjacket" that
can only be loosened by allowing concurrent jurisdiction in the district courts.
Br. of Appellant at 15. Virginia argues that our construction of Sec. 307(b)(1)
forces a state to provoke hostile agency action (through EPA disapproval of
state plans) in order for the state to bring a constitutional challenge. A state
should not be required, according to Virginia, to elicit adverse EPA final action,
thereby incurring risks such as highway funding restrictions, emission offset
sanctions, promulgation of a FIP and discretionary sanctions in order to test its
claims that these measures are unconstitutional. The dilemma that Virginia
describes, however, is not presented in this case. Virginia filed suit after EPA
took actions that were subject to challenge under Sec. 307(b)(1). We, therefore,
have no occasion to consider whether, in the absence of those final actions,
Virginia could have obtained review under the district court's general federal
question jurisdiction. We hold only that Virginia, in the circumstances
presented, could have raised its constitutional challenges under Sec. 307(b)(1)
and that it was therefore confined to that avenue of review.
39
Finally, we disagree with Virginia's argument that the policy reasons supporting
direct review do not apply to a constitutional challenge. Because Congress
wanted prompt and conclusive review in air quality controversies, it channeled
(to the courts of appeals) all challenges, regardless of their basis, of EPA rules
and final actions. See Palumbo, 989 F.2d at 162 ( "exclusive jurisdiction in the
court of appeals avoids duplicative review and the attendant delay and expense
41
42
AFFIRMED.
Justice Powell heard oral argument but did not participate in the decision of this
case. The decision is filed by a quorum of the panel pursuant to 28 U.S.C. Sec.
46(d)
New polluting sources would not be allowed to be built and existing ones
would not be allowed to be modified, unless 200 tons of pollution from existing
sources were reduced for every 100 new tons of pollution allowed
and six months after it was filed. Discretionary sanctions, then, are no longer
available to force compliance with Title I. Furthermore, the mandatory
sanctions clock for noncompliance with Title I is stopped and reset to zero. See
Browner, 57 F.3d at 1126. However, EPA's earlier finding that Virginia's Title I
SIP was incomplete remains relevant, even though there has been a superseding
finding of administrative completeness. The earlier finding of incompleteness
started the two-year countdown toward EPA's promulgation of a FIP. See CAA
Sec. 110(c)(1), 42 U.S.C. Sec. 7410(c)(1); Browner, 57 F.3d at 1126 & n. 7.
This countdown stops only when EPA approves Virginia's proposed SIP. See
id. That approval has not been given. Accordingly, Virginia's challenge to Title
I is not moot. Furthermore, the threat of sanctions under Title V remains
because Virginia did not gain approval for its SIP before the November 15,
1995, deadline set by CAA Sec. 502(d)(3), 42 U.S.C. Sec. 7661a(d)(3), so the
challenge to Title V is not moot either
5