Trustees for Alaska Alaska Center for the Environment Anchorage Audobon Society v. Tom Fink, in His Capacity as Mayor of the Municipality of Anchorage and the Municipality of Anchorage

Citations: 17 F.3d 1209; 94 Daily Journal DAR 2679; 94 Cal. Daily Op. Serv. 1487; 24 Envtl. L. Rep. (Envtl. Law Inst.) 20550; 38 ERC (BNA) 1389; 1994 U.S. App. LEXIS 3464Docket: 92-36932

Court: Court of Appeals for the Ninth Circuit; February 28, 1994; Federal Appellate Court

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Trustees for Alaska, along with other environmental organizations, filed a lawsuit against Tom Fink, the Mayor of Anchorage, and the Municipality of Anchorage, arguing that under Part D of the 1977 Amendments to the Clean Air Act, the municipality was not permitted to make conditional commitments regarding Traffic Control Measures in its State Implementation Plan (SIP). The court determined that Anchorage was allowed to condition its commitment to expand mass transit bus services on the availability of funding, affirming the district court's finding that the plaintiffs did not demonstrate that Anchorage failed to take reasonable steps to secure necessary funding.

The Clean Air Act's history illustrates persistent air quality challenges, with Anchorage classified as a nonattainment area for carbon monoxide since 1978, needing significant reductions in emissions primarily from automobiles. In response, local officials developed the Anchorage Air Quality Plan, which included plans to significantly expand the bus fleet. However, Anchorage had not made substantial progress in this expansion, leading to the lawsuit under the citizen suit provision of the Clean Air Act. The district court found that Anchorage had reasonably sought funding but had not succeeded, thus ruling in favor of the municipality. The appellate court reviewed the district court's interpretation of the Clean Air Act de novo.

Congress mandated EPA approval of a new State Implementation Plan (SIP) for the 1987 extension, requiring that the SIP "shall commit the financial resources necessary to carry out" transportation control measures (TCMs) as per 42 U.S.C. Sec. 7502(b)(7). Trustees argue that Anchorage should adhere strictly to this directive. However, the court finds the language of Sec. 7502(b)(7) ambiguous, as the term "shall" does not preclude conditions on commitments. The court mentions that the EPA's interpretation allows for conditional commitments based on funding availability, as outlined in its 1981 guidance. This aligns with legislative intent, which acknowledged the need to consider economic or social costs when determining the feasibility of TCMs. The court concludes that Anchorage's SIP commitment can be contingent on funding availability. Additionally, it clarifies that while all TCMs must be enforceable, not every concern expressed creates a binding condition; the enforceability of the SIP is contingent upon specific strategies detailed within it.

State and local governments risk using conditional commitments to postpone critical decisions without judicial oversight. The 1977 Amendments to the Clean Air Act reinforced compliance with National Ambient Air Quality Standards (NAAQS) and were criticized as coercive towards states. The Anchorage Plan lacked an unconditional commitment to expand bus service, highlighting funding challenges and emphasizing that further expansion depended on closing a financial gap. Compliance with Section 7502(c) requires the condition to be treated as an enforceable obligation to seek funding. 

The trustees did not demonstrate that Anchorage failed to pursue funding for bus expansion. The district judge found evidence of Anchorage's good faith efforts, including grant requests, despite projected operating deficits and local tax restrictions. Voter rejection of tax measures further complicated funding. Anchorage ultimately abandoned its bus program in favor of a new State Implementation Plan (SIP) under EPA review. The trustees' argument that failure to expand bus service constituted a violation was found unpersuasive. The district court's judgment was affirmed, with parties bearing their own appellate costs. 

Part D of the 1977 Amendments provided deadlines for areas not meeting NAAQS for carbon monoxide and established requirements for SIPs, including the commitment of financial resources and the implementation of all reasonable transportation control measures. Noncompliance could lead to federal intervention and funding penalties.

Part D of the 1977 Amendments authorized the Alaska governor to delegate the development and implementation of the local component of the State Implementation Plan (SIP) to Anchorage officials, which was executed under Alaska Stat. Sec. 46.03.210 (1982). The Environmental Protection Agency (EPA) approved the SIP incrementally from 1982 to 1986, culminating in its promulgation as a regulation in 1992. The federally approved SIP possesses the force and effect of federal law, making it enforceable in federal courts. Although Congress did not rectify any misinterpretations regarding the commitment required for SIPs in the 1990 Amendments, all post-1977 SIPs, including those not developed under Part D, must include assurances of adequate funding. The Anchorage Plan revealed challenges in securing necessary funding and conditioned its commitment to Transportation Control Measures (TCMs) on such funding. Despite requesting grants and facing an anticipated operating deficit of $25 million, Anchorage's city charter restrictions and voter rejections of tax measures hindered further funding efforts. The court found that Anchorage's attempts to secure funding were reasonable and that the failure to expand bus service alone did not constitute a violation of Part D, leading to the affirmation of the district court's judgment. Each party will bear its own costs in the appeal.

The excerpt highlights several critical aspects of the State Implementation Plan (SIP) requirements under the Clean Air Act for nonattainment areas, specifically focusing on Alaska's SIP. Key points include:

1. **Financial Commitment**: The SIP must identify and commit financial resources necessary for implementing Transportation Control Measures (TCMs), as mandated by 42 U.S.C. § 7502(b)(7).

2. **Consequences of Non-Approval**: The EPA had the authority to impose a Federal Implementation Plan on Alaska if it did not approve the 1982 SIP, indicating the regulatory power of the EPA under 42 U.S.C. § 7410c.

3. **Federal Funding Risks**: If the SIP was approved but not adequately implemented, Alaska risked the withholding of federal funds, as outlined in 42 U.S.C. §§ 7506a and 7616(b)(2).

4. **Delegation of Authority**: Alaska’s governor delegated the authority to develop and implement the local component of the SIP to Anchorage, as permitted by 42 U.S.C. §§ 7502(a)(2) and 7504a, with Anchorage receiving this authority under Alaska Stat. § 46.03.210 in 1982.

5. **SIP Approval Process**: The EPA approved the SIP in stages between 1982 and 1986, leading to its eventual promulgation as a regulation in 1992 (40 C.F.R. § 52.75), making it enforceable in federal courts.

6. **Funding Assurance Requirements**: Post-1977 SIPs, including those not developed under Part D, required assurances of adequate funding, a requirement that remained unchanged in the 1990 Amendments (42 U.S.C. § 7410(a)(2)(F)(i)).

7. **Conditional Commitments**: The EPA has interpreted the Act to allow for conditional commitments regarding funding for TCMs, emphasizing that the commitment's specificity should align with what might be required in a court order for implementation.

8. **Anchorage Plan's Funding Challenges**: The district court noted that the Anchorage plan contained statements indicating anticipated difficulties in securing necessary funding, which effectively conditioned Anchorage's commitment to the TCM on the availability of financial resources.