Transportation Planning and the Clean Air Act

By Mitchell, Alan L. | Environmental Law, Summer 1995 | Go to article overview

Transportation Planning and the Clean Air Act


Mitchell, Alan L., Environmental Law


I. Introduction

Of all life's necessities, air is the one that people partake of most directly. Water can be filtered and food can be cleaned or grown organically, but we breath everything that we emit into the atmosphere.(1) Of all the sources of air pollution, western society is arguably most strongly attached to the motor vehicle. Unfortunately, mobile source emissions such as motor vehicles account for most of the ozone and carbon monoxide pollution in urban areas.(2) Therefore, reducing the negative impact of vehicle use upon air quality is of paramount importance.

Cleaning up individual vehicle emissions or decreasing overall vehicle impact through means such as reducing the number of vehicles in use can reduce the impact of mobile source emissions. The Clean Air Act (CAA)(3) embodies both of these options. Title I(4) of the Act contains provisions for planning by state and local governments to reduce vehicle impact while maintaining mobility, and Title II(5) addresses vehicle emissions reductions. This Chapter focuses on the transportation planning aspects of Title I; specifically, it examines the CAA's impact on transportation planning issues and how courts have addressed challenges to state and agency transportation planning actions.

Transportation planning must balance the need for effective movement of people and goods with society's desire to maintain and even improve present air quality. The CAA attempts to achieve this balance by providing goals and procedures for achieving air quality improvements. However, the CAA's procedural and substantive complexity as well as the uncertain efficacy of challenges to state and agency actions have generated much uncertainty and confusion. While the CAA promises protection and enhancement of air quality, case law reflects a history of noncompliance and litigation. Two recent Ninth Circuit cases, McCarthy v. Thomas(6) and Trustees for Alaska v. Fink,(7) exemplify some of the difficulties encountered with enforcement of CAA requirements for transportation.

McCarthy was a sequel to Delaney v. EPA,(8) in which the Ninth Circuit found the Environmental Protection Agency's (EPA) approval of the Tucson and Phoenix transportation control plans to be arbitrary and capricious(9) and ordered EPA to begin promulgation of a Federal Implementation Plan (FIP).(10) In McCarthy, the plaintiffs argued that Arizona was not enacting the State Implementation Plan (SIP)(11) revisions that the state had proposed in response to the threatened FIP,(12) and the Ninth Circuit agreed. The court held that the cities involved were required to implement the mass transit improvements promised by the Arizona SIP,(13) and ordered the district court to fashion an appropriate remedy.(14) McCarthy and Delaney suggested that the Ninth Circuit would require states to fully comply with the CAA's substantive goals. Such a requirement would comport with Congress's intent that the CAA's substantive goals be paramount.(15)

On the other hand, in Trustees for Alaska, the Ninth Circuit allowed the City of Anchorage to condition its promise to implement mass transit improvements upon funding availability.(16) In addition, because the plaintiffs had failed to prove that the city's attempts to locate funding were unreasonable, the court refused to find that Anchorage was in violation of its CAA implementation plan.(17) In essence, the Ninth Circuit's decision in Trustees for Alaska permitted Anchorage to use lack of funding as an excuse for not implementing the mass transit expansion that was part of Alaska's SIP under the CAA. The Trustees for Alaska decision represents a potential departure from enforcement of CAA substantive goals in that it implies that the CAA's mandate for enforceability can be conditioned upon good faith efforts to secure funds. To date, no other circuit interprets the CAA to permit a state or city to condition its SEP commitments upon funding availability.

This Chapter discusses transportation issues under the CAA and focuses upon those sections of the Act that are most relevant to the Trustees for Alaska decision. …

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