Regulation and the Courts: The Case of the Clean Air Act

By R. Shep Melnick | Go to book overview

CHAPTER NINE
The Rise and Fall of Transportation Controls

The foregoing order is technically in conformance with the statute but in some respects it ignores reality.

-- Judge George E. MacKinnon in NRDC v. EPA, 1973

Unreasonable goals based on erroneous assumptions and scheduled within arbitrary deadlines do not enhance public understanding nor do they aid in getting the air cleaned up.

-- Charles Barden, Texas Air Resources Control Board, 1975

THE federal courts presided over both the birth and the death of the programs designed by the Environmental Protection Agency to reduce automobile traffic in metropolitan areas. The 1970 Clean Air Act required state plans to contain all measures necessary for attaining national air quality standards, including "land-use and transportation controls." The EPA tried to avoid getting into the transportation planning business, but the court of appeals for the D.C. Circuit and a federal district court in California ordered the agency to comply with the letter of the law.1 The previously timid bureaucracy responded to these court orders by proposing a large number of stringent transportation controls.

The EPA's regulations provoked a fire storm of criticism in the affected cities, state air agencies, the press, and Congress. No other controversy so damaged the EPA's public reputation as did its promulgation of transportation control plans. But the most crippling blows to the EPA's plans came from the courts themselves. Two circuits struck down EPA- written state implementation plans (SIPs) as technically deficient.2 Three other circuits ruled that the EPA did not have authority to force the

____________________
1
Natural Resources Defense Council v. Environmental Protection Agency, 475 F.2d 968 (D.C. Cir. 1973); City of Riverside v. Ruckelshaus, 4 Environment Reporter Cases 1728 (C.D. Cal. 1972).
2
South Terminal Corp. v. Environmental Protection Agency, 504 F.2d 646 (1st Cir. 1974); Texas v. Environmental Protection Agency, 499 F.2d 289 (5th Cir. 1974).

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