Filed: Apr. 02, 1996
Latest Update: Feb. 21, 2020
Summary: See, e.g., Oregon Natural Resources Council, 834 F.2d at 851;inapposite since none involve judicial review of agency action.conformity determinations;out in conformity with applicable air quality standards.based on the most recent estimates of emissions .injunctive relief for the NEPA violations.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1335
CONSERVATION LAW FOUNDATION, INC.,
Petitioner,
v.
JAMES BUSEY, ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION, ET AL.,
Respondents.
No. 92-1464
TOWN OF NEWINGTON, NEW HAMPSHIRE,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, ET AL.,
Respondents.
ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL AVIATION ADMINISTRATION
No. 95-1019
CONSERVATION LAW FOUNDATION, INC.,
Plaintiff - Appellant,
v.
DEPARTMENT OF THE AIR FORCE, ET AL.,
Defendants - Appellees.
No. 95-1020
TOWN OF NEWINGTON, NEW HAMPSHIRE,
Plaintiff - Appellant,
v.
DEPARTMENT OF THE AIR FORCE, ET AL.,
Defendants - Appellees.
No. 95-1047
CONSERVATION LAW FOUNDATION, INC.,
AND TOWN OF NEWINGTON, NEW HAMPSHIRE,
Plaintiffs - Appellees,
v.
DEPARTMENT OF THE AIR FORCE, ET AL.,
Defendants - Appellees.
STATE OF NEW HAMPSHIRE, AND
PEASE DEVELOPMENT AUTHORITY,
Defendants - Appellants.
No. 95-1048
CONSERVATION LAW FOUNDATION, INC.,
Plaintiff - Appellee,
v.
DEPARTMENT OF THE AIR FORCE, ET AL.,
Defendants - Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
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Before
Selya and Cyr, Circuit Judges,
and Schwarzer,* Senior District Judge.
Lewis M. Milford, with whom Mark A. Sinclair, Robert A.
Backus and Backus, Meyer & Soloman were on brief for Conservation
Law Foundation.
Perry M. Rosen, with whom Dana C. Nifosi, Cutler &
Stanfield, Malcolm R. McNeill, Jr. and McNeill & Taylor, P.A.
were on brief for Town of Newington, New Hampshire.
Jeffrey P. Kehne, Attorney, Environment & Natural Resources
Division, U.S. Department of Justice, with whom Lois J. Schiffer,
Assistant Attorney General, Beverly Sherman Nash, Richard Sarver,
Edward J. Shawaker, Attorneys, Environment & Natural Resources
Division, U.S. Department of Justice, Douglas J. Heady, Office of
the General Counsel, Department of the Air Force, Daphne A.
Fuller, Attorney, Office of the Chief Counsel, Federal Aviation
Administration, and John R. Michaud, Office of General Counsel,
U.S. Environmental Protection Agency, were on brief for the
federal parties.
Donald W. Stever, with whom Jeffrey R. Howard, Attorney
General, Steven M. Houran, Deputy Attorney General, Office of the
Attorney General, Environmental Protection Bureau, and Dewey
Ballantine, were on brief for State of New Hampshire and Pease
Development Authority.
April 2, 1996
April 2, 1996
* Of the Northern District of California, sitting by
designation.
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SCHWARZER, Senior District Judge. We must decide
SCHWARZER, Senior District Judge.
whether defendants have complied with various federal
environmental laws that apply to the conversion of land on Pease
Air Force Base (Pease) in New Hampshire to civilian use incident
to the base's closure. The United States Air Force entered into
a long-term lease of a portion of the base to Pease Development
Authority (PDA). Concerned about the resulting effects on the
clean up of hazardous wastes on the base and the air quality in
the area, the Conservation Law Foundation (CLF) and the Town of
Newington, New Hampshire (Newington) challenge the Air Force's
decision to lease the property and the support of that decision
by other federal agencies. CLF and Newington contend that the
Air Force and the Environmental Protection Agency (EPA) violated
section 176(c) of the Clean Air Act (CAA), 42 U.S.C. 7506(c)
(Supp. III 1991), section 102(2)(c) of the National Environmental
Policy Act (NEPA), 42 U.S.C. 4332(2)(C) (1988), and section
120(h)(3) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. 9620(h)(3)
(1988). PDA, the State of New Hampshire, and several other
interested parties have intervened and, along with the Air Force
and the EPA, oppose the relief sought.
In a lengthy opinion ruling on the parties' cross-
motions for summary judgment, the district court found that the
Air Force had violated NEPA and CERCLA and directed it to submit
a Supplemental Final Environmental Impact Statement (Supplemental
FEIS), including a remedial design for contaminated parcels
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covered by the lease. The district court denied injunctive
relief, however, and dismissed all remaining claims.
Conservation Law Found. v. Department of the Air Force, 864 F.
Supp. 265 (D.N.H. 1994).
Plaintiffs have appealed from the dismissal of their
CAA claims and the denial of injunctive relief. The federal
defendants have cross-appealed from the finding that they
violated CERCLA, but have not appealed the district court's order
directing them to prepare a Supplemental FEIS. We have appellate
jurisdiction under 28 U.S.C. 1291. We reverse the judgment in
so far as it found a CERCLA violation but affirm in all other
respects.
Also before us are petitions filed by CLF and Newington
to review an order of the Federal Aviation Administration (FAA)
approving PDA's airport development plan. We have jurisdiction
under 49 U.S.C. app. 1486(a) and deny the petitions with
respect to the CAA claim and retain jurisdiction of the NEPA
claim pending completion of the Supplemental FEIS.
I. BACKGROUND FACTS
I. BACKGROUND FACTS
Acting under the Base Closure and Realignment Act of
1988 (the Base Closure Act), Pub. L. No. 100-526, 102 Stat. 2627
(1988) (codified as amended at 10 U.S.C. 2687 (1988 & Supp. V
1993)), the Air Force closed Pease in March 1991. Located
adjacent to Newington and Portsmouth, New Hampshire, the base
occupies some 4,200 acres and comprises extensive facilities that
supported Air Force operations, including a runway. PDA was
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created as an agency of the State of New Hampshire to acquire
certain parcels of land within the base and to develop and
implement a plan for their reuse. It ultimately developed a plan
envisioning a commercial airport, light industry, various
commercial uses, retail space, and open space.
In preparation for the transfer of land to PDA, the Air
Force in February 1990 launched the process of complying with
applicable environmental requirements. The details of the
process are set out at length in the district court's opinion,
see 864 F. Supp. at 270-72, and a summary will suffice here. In
February 1991, the Air Force published a Draft Environmental
Impact Statement (DEIS) on which CLF and the EPA submitted
comments mainly addressing air quality concerns. In April 1991,
the Air Force entered into a Federal Facility Agreement (FFA)
with the EPA and the State of New Hampshire spelling out its
environmental obligations incident to the transfer. In June
1991, the Air Force prepared a Final Environmental Impact
Statement (FEIS). The FEIS stated that, although development
under the plan, including the increased traffic it would
generate, would not result in violations of state or federal air
quality standards, it would have an impact on New Hampshire's
ability to achieve the ozone precursor reductions required by the
CAA. To resolve these air quality concerns, PDA, the EPA, and
the New Hampshire Department of Environmental Services (NHDES) on
August 1, 1991, entered into a Memorandum of Understanding (MOU).
The EPA then issued its comments on the FEIS, stating that while
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the project would reduce New Hampshire's ability to achieve
compliance with the CAA, the MOU provided a framework for
compliance.
As required by the Base Closure Act, the Air Force then
prepared its initial Record of Decision (ROD), documenting its
decisions regarding the closure of Pease and the disposition of
the property. The ROD addressed, among other things,
environmental issues, including the CAA's requirement that the
project conform with the New Hampshire State Implementation Plan
(SIP) and CERCLA's requirement that the Air Force undertake
certain remedial measures to clean up contaminated sites prior to
the transfer of those sites to PDA. See 42 U.S.C. 7506(c)(1);
42 U.S.C. 9620(h)(3).
Because the PDA plan contemplated civilian airport
operations, FAA approval was required under the Surplus Property
Act of 1944, 50 U.S.C. app. 1622(g) (1988) (subsequently
recodified at 49 U.S.C. 47151-47153 (Supp. 1994)). In
February 1992, the FAA issued an ROD approving elements of the
plan and recommending that the Air Force proceed with its
proposed transfer of property to PDA.
In March 1992, CLF filed this action in the district
court, alleging that the Air Force and the EPA had violated the
CAA and NEPA. In June 1992, Newington filed its action asserting
the same claims, as well as a claim under CERCLA. These actions
were later consolidated. CLF and Newington also filed petitions
in this court for review of the FAA's February 1992 ROD, alleging
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that the FAA violated NEPA and the CAA. The petitions were
stayed pending the outcome of the district court proceedings and
are now before us along with the appeals from the judgment below.
While these actions were pending, the Air Force
continued to pursue the administrative proceedings preparatory to
the transfer. In March 1992, it issued a Memorandum for the
Record updating its earlier conformity determination. In April
1992, it issued a Supplemental ROD in which it rendered its final
determination concerning the disposal of the Pease parcels,
including an acknowledgment that remedial action on contaminated
areas had to be completed before it could transfer those parcels
by deed. The Air Force then prepared a Preliminary Environmental
Survey and, on the basis of the survey, issued its Finding of No
Significant Impact (FONSI). In April 1992, the Air Force entered
into a 55-year lease and contract of conveyance to PDA covering
these parcels.
II. SCOPE OF REVIEW
II. SCOPE OF REVIEW
We review de novo the district court's grant of summary
judgment, Town of Norfolk v. United States Army Corps of Eng'rs,
968 F.2d 1438, 1445 (1st Cir. 1992), as well as its
interpretation of the controlling statutes, United Technologies
v. Browning Ferris Indus., 33 F.3d 96, 98 (1st Cir. 1994), cert.
denied, 115 S. Ct. 1176 (1995). Review of the district court's
grant or denial of injunctive relief, in so far as it involves no
question of law, is for abuse of discretion. Sunshine Dev., Inc.
-8-
v. FDIC, 33 F.3d 106, 111 (1st Cir. 1994; Narragansett Indian
Tribe v. Guilbert, 934 F.2d 4, 54 (1st Cir. 1991).
Regarding our review of the district court's
assessment of the record on which agency action was based, we
have taken "a practical approach to deciding what standard of
review to apply." Sierra Club v. Marsh, 976 F.2d 763, 769 (1st
Cir. 1992). When the district court's judgment turns upon its
own assessment of evidence, "or even upon lengthy district court
proceedings in which knowledgeable counsel explain the agency's
decision-making process in detail, we will show appropriate
hesitation to overturn that judgment. . . . But, where the
district court simply reviews a set of agency documents and,
applying the same legal standard as we apply here, reaches a
particular legal conclusion about the 'reasonableness' of an
agency's action, we have greater legal freedom to differ with the
district court's ultimate characterization of agency behavior."
Sierra Club v. Marsh, 769 F.2d 868, 872 (1st Cir. 1985). With
these principles in mind, we turn to the merits of the appeal.
III. THE CLEAN AIR ACT CLAIMS
III. THE CLEAN AIR ACT CLAIMS
The purpose of the CAA, as the district court observed,
is "to protect and enhance the Nation's air quality, to initiate
and accelerate a national program of research and development
designed to control air pollution, to provide technical and
financial assistance to the States in the execution of pollution
control programs, and to encourage the development of regional
pollution control programs." See 864 F. Supp. at 273 (citing 42
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U.S.C. 7401(b) (1988)). Pursuant to the Act, the EPA
established National Ambient Air Quality Standards (NAAQS)
reflecting the maximum concentration levels of particular
pollutants (criteria pollutants) allowable to protect public
health. See 42 U.S.C. 7409 (Supp. III 1991). Among them were
NAAQS for ozone and carbon monoxide, both of which are relevant
here. See 40 C.F.R. 50.8, 50.9 (1995). Responsibility for
achieving and maintaining the NAAQS falls on the states, which
are required to submit state implementation plans (SIPs)
specifying the manner in which they will achieve and maintain the
NAAQS for the various criteria pollutants. See 42 U.S.C. 7407
(1988 & Supp. III 1991).
The EPA and the states have designated different
regions according to the level of criteria pollutants in each
area. See 42 U.S.C. 7407(d)(1)(A). A region which has not
attained the NAAQS for a certain criteria pollutant is designated
a "nonattainment" area; a region about which there are
insufficient data to determine compliance with the NAAQS is
designated "unclassified" and deemed in compliance with the
NAAQS. See id. At the time the decisions challenged here were
made, the Portsmouth-Dover-Rochester region, where the Pease
project is located, was designated a "serious nonattainment" area
for ozone and an "unclassified" area for carbon monoxide. See 40
C.F.R. 81.330 (1991).
For serious nonattainment areas for ozone, the
statutory deadline for attaining the NAAQS is November 15, 1999.
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42 U.S.C. 7511(a)(1) (Supp. III 1991). To ensure progress
toward that goal, the 1990 amendments to the CAA require states
to revise their SIPs in a manner that will result in attainment
of both the ultimate deadline and interim milestones established
by the 1990 amendments. See 42 U.S.C. 7511a(c)(2) (Supp. III
1991).
To further promote attainment of the NAAQS for
different criteria pollutants, the 1990 amendments also added
specific criteria to section 7506(c)(1) (section 176(c)(1) of the
CAA), the conformity provision of the Act, to wit, subsections
(A) and (B)(i)-(iii). See S. Rep. No. 101-228, 101st Cong., 2d
Sess. 28 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3414. The
conformity provision prohibits federal agencies from approving or
supporting any activity which does not conform to an SIP. Under
the new criteria, conformity means that the activity will not
cause new violations, increase the frequency or severity of
violations, or delay attainment of various standards,
requirements, and milestones. See 42 U.S.C. 7506(c)(1)(B).
Plaintiffs claim that the EPA, the Air Force and the
FAA violated the conformity provision. Plaintiffs make three
arguments: (1) that no determination of conformity could be made
until NEPA had been complied with; (2) that the EPA failed to
make a conformity determination; and (3) that the Air Force and
the FAA violated the substantive requirements of the conformity
provision. As a preliminary matter, however, we must address
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PDA's contention that the district court lacked subject matter
jurisdiction over plaintiffs' CAA claims.
A. Subject Matter Jurisdiction
A. Subject Matter Jurisdiction
Plaintiffs assert that jurisdiction over their
conformity determination claims exists under the citizen suit
provision of the CAA, 42 U.S.C. 7604(a)(1) (1988 & Supp. III
1991), or in the alternative, under the Administrative Procedure
Act (APA), 5 U.S.C. 702 (1988). Defendants dispute that
jurisdiction exists under either provision. We address first the
knotty question of whether jurisdiction exists under the citizen
suit provision; if it does, jurisdiction under the APA is
precluded. See 5 U.S.C. 704 (1988) ("Agency action made
reviewable by statute and final agency action for which there is
no other adequate remedy in a court are subject to judicial
review" under the APA (emphasis added)). See Oregon Natural
Resources Council v. United States Forest Serv., 834 F.2d 842,
851 (9th Cir. 1987); Allegheny County Sanitary Auth. v. EPA, 732
F.2d 1167, 1177 (3d Cir. 1984); Environmental Defense Fund v.
Tidwell, 837 F. Supp. 1344, 1355-57 (E.D.N.C. 1992) (APA provides
a right of review of agency decisions precisely where a
plaintiff's claim is not covered by the citizen suit provisions
of the substantive act).
1. The Citizen Suit Provision, 42 U.S.C. 7604.
1. The Citizen Suit Provision, 42 U.S.C. 7604.
We addressed the issue of citizen suit jurisdiction
over claims of violation of the conformity provision once before
in Conservation Law Found. v. Federal Highway Admin., 24 F.3d
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1465 (1st Cir. 1994) (CLF). Although we held citizen suit
jurisdiction to extend to the conformity provision claims
asserted there, we cautioned that because the "issue is a close
one. . . . [and] because the outcome of [the] case does not
depend upon [the] jurisdictional ruling, this Court remains free
to revisit the issue in a future case where it may be decisive."
Id. at 1478 n.6. We do so now.
a. Legislative History and Precedent. "In enacting
a. Legislative History and Precedent.
[the citizen suit] provision, Congress expanded federal court
jurisdiction by circumventing the diversity of citizenship,
jurisdictional amount, and traditional standing requirements."
Wilder v. Thomas, 854 F.2d 605, 613 (2d Cir. 1988), cert. denied,
489 U.S. 1053 (1989). See S. Rep. No. 91-1196, 91st Cong., 2d
Sess. 64 (1970), reprinted at Natural Resources Defense Council,
Inc. v. Train, 510 F.2d 692, 725, Appendix B (D.C. Cir. 1974).
Prior to the enactment of the citizen suit provision,
"[g]overnment initiative in seeking enforcement under the Clean
Air Act [had] been restrained." S. Rep. No. 91-1196, reprinted
at 510 F.2d at 723. By authorizing citizens to bring suit for
violations of CAA standards, Congress sought to "motivate
governmental agencies charged with the responsibility to bring
enforcement and abatement proceedings." Id. In recognition of
the fact that "[f]ederal facilities generate considerable air
pollution," the citizen suit provision allowed suits to be
"brought against an individual or government agency." Id. at
724.
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As Congress opened the door to citizen suits, however,
it also sought to limit that jurisdiction to claims that "would
not require reanalysis of technological or other considerations
at the enforcement stage" and would have to meet "an objective
evidentiary standard." Id. To that end, Congress "carefully
restricted [citizen suit jurisdiction] to actions where
violations of standards and regulations or a failure on the part
of officials to act are alleged." Id. at 723.
Conscious of the concerns expressed in the legislative
history, courts interpreting citizen suit jurisdiction have
largely focused on whether the particular standard or requirement
plaintiffs sought to enforce was sufficiently specific. Thus,
interpreting citizen suit jurisdiction as limited to claims "for
violations of specific provisions of the act or specific
provisions of an applicable implementation plan," the Second
Circuit held that suits can be brought to enforce specific
measures, strategies, or commitments designed to ensure
compliance with the NAAQS, but not to enforce the NAAQS directly.
See, e.g., Wilder, 854 F.2d at 613-14. Courts have repeatedly
applied this test as the linchpin of citizen suit jurisdiction.
See, e.g., Coalition Against Columbus Ctr. v. City of New York,
967 F.2d 764, 769-71 (2d Cir. 1992); Cate v. Transcontinental Gas
Pipe Line Corp., 904 F. Supp. 526, 530-32 (W.D. Va. 1995);
Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 1448,
1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).
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Our decision in CLF and plaintiffs' arguments have
therefore focused on whether the conformity provision meets the
requisite level of specificity to serve as the basis of a citizen
suit. Before asking whether the conformity provision passes the
specificity test, however, we must consider the threshold issue
whether the conformity provision falls within one of the
statutory categories of violations for which citizen suits are
authorized.
b. Terms of the Statute. The CAA permits any person
b. Terms of the Statute.
to bring a civil action "against any person . . . who is alleged
to have violated or to be in violation of . . . an emission
standard or limitation under this chapter . . . ." 42 U.S.C.
7604(a)(1)(A). An "emission standard or limitation" is defined
as "a schedule or timetable of compliance, emission limitation,
standard of performance or emission standard . . . which is in
effect under this chapter . . . or under an applicable
implementation plan." 42 U.S.C. 7604(f)(1) (Supp. III 1991).
The additional definitions in subsections (2), (3), and (4) are
not applicable here.1 Thus, citizen suit jurisdiction over a
violation of the conformity provision is subject to a two-prong
test: (1) the conformity provision must be a schedule or
1 Subsections (2) and (3) deal with controls, conditions,
prohibitions and requirements related to specific situations and
provisions not at issue here. Subsection (4) deals with
conformity requirements under an SIP and does not apply because
the requirements were not incorporated into New Hampshire's plan
at the material times; the only relevant conformity requirements
were those in effect under the Act itself. See 42 U.S.C.
7604(f)(2)-(4).
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timetable of compliance, emission limitation, standard of
performance, or emission standard, and (2) it must be in effect
under this chapter or an applicable implementation plan. See
Cate, 904 F. Supp. at 529. The conformity provision meets the
second prong; as a provision of the Act, it is clearly "in effect
under the Act." See CLF, 24 F.3d at 1477. The sole question is
whether the conformity provision qualifies as (1) a schedule or
timetable of compliance, (2) an emission limitation, (3) a
standard of performance, or (4) an emission standard, as these
terms are defined by other provisions of the Act. If it does not
fall within one of these four cat categories, there is no citizen
suit jurisdiction over the conformity provision claims.
(i) Emission Limitation/Emission Standard. Section
(i) Emission Limitation/Emission Standard.
7602(k) defines the terms "emission standard" and "emission
limitation" to mean "a requirement established by the State or
the Administrator which limits the quantity, rate, or
concentration of emissions of air pollutants on a continuous
basis . . . ." 42 U.S.C. 7602(k) (Supp. III 1991); see also
40 C.F.R. 51.100(z) (1991) (EPA's regulations implementing the
CAA). The conformity provision is not "a requirement established
by the State or the Administrator"; it is a provision of the CAA
enacted by Congress. And while the provision seeks to ensure
conformity with existing emission standards or limitations, it
does not itself limit emissions of air pollutants. Thus, it is
not an emissions limitation or standard.
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(ii) Standard of Performance. Section 7602(l)
(ii) Standard of Performance.
defines "standard of performance" as "a requirement of continuous
emission reduction, including any requirement relating to the
operation or maintenance of a source to assure continuous
emission reduction." 42 U.S.C. 7602(l) (1988 & Supp. III
1991). CLF argues that the conformity provision constitutes a
"standard of performance" within the meaning of section 7602(l)
because it prohibits a federal agency from supporting an activity
unless that activity is "consistent with 'reducing' the severity
and number of violations in a nonattainment area and will not
delay timely attainment of any required emission reductions." In
support of its argument, CLF relies upon this court's decision in
CLF, 24 F.3d 1465, to which we now turn.
In that case plaintiff challenged the Federal Highway
Administration's approval of a highway project on the ground,
among others, that it violated the conformity provisions of the
CAA. Unlike the instant case, CLF involved conformity of a
transportation plan subject to section 7506(c)(3). Under section
7506(c)(3)(A)(iii), a transportation plan or program is in
conformity if it contributes to annual emission reductions in
amounts specified elsewhere in the CAA.
Referring to " 7506(c)(1) & (c)(3)," the court held
that "[t]hese conformity requirements plainly constitute an
emissions 'standard of performance.'" CLF, 24 F.3d at 1477
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(emphasis added).2 In so holding, the court observed that those
provisions "mandate that defendants demonstrate that their
transportation projects 'would contribute to annual emissions
reductions consistent with' the levels set out in 7511a(b)(1)
and 7512a(a)(7)." Id. This language reveals that the court
was relying on 7506(c)(3) for its finding that the conformity
requirements constitute a standard of performance. See 42 U.S.C.
7506(c)(3)(A)(iii) (to be in conformity, transportation plans
or programs in ozone and carbon monoxide nonattainment areas must
"contribute to annual emissions reductions consistent with
sections 7511a(b)(1) and 7512a(a)(7)").
On further reflection, it appears to us that the route
to section 7506(c)(3) lies through section 7506(c)(1). In CLF,
as in the case before us, plaintiffs were challenging government
action in approving an activity that did not conform to an
approved implementation plan or other conformity criteria. See
id. at 1478. While subsection (c)(3) spells out particular
conformity criteria for transportation plans, the crux of the
action remained the noncompliance by a government agency, not the
violation of an emission standard by the activity itself. The
2 The court also held that prior case law limiting citizen suit
jurisdiction to enforcement of specific measures, commitments,
and strategies for ensuring compliance with air quality standards
did not preclude citizen suit jurisdiction over conformity
provision claims because the requirements of the conformity
provision were sufficiently specific and objective. CLF, 24 F.3d
at 1477-78. While we do not disagree with that part of the
analysis, we do not reach the specificity issue unless we find
that the conformity provision otherwise falls within the
statutory definition of an "emission standard or limitation."
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foundation of the plaintiffs' claims, both there and here, is the
subsection (c)(1) prohibition of the federal agency's approval or
support of any activity not in conformity with an approved plan
or other standards, requirements, or milestones.
As noted above, a standard of performance is defined as
"a requirement of continuous emission reduction . . . ." 42
U.S.C. 7602(l) (emphasis added). Nothing in section 7506(c)(1)
imposes an emissions reduction requirement. That section
prohibits a federal agency from approving, supporting, or funding
any activities that do not "conform" to the provisions of an SIP
or other standards, emissions reduction requirements, and
milestones. The sources of those standards, requirements, and
milestones may include the NAAQS or standards and requirements
set out in an SIP or provisions of the CAA itself. Section
7605(c)(1)(A) and (B) define what standards must be met for a
project to be in conformity. In the case of a transportation
plan or program, such as the one at issue in CLF, section
7506(c)(3) imposes additional standards. Thus, the conformity
provision refers to or involves standards, reduction
requirements, and milestones, in the sense that a federal agency
must determine that a project meets those standards in order to
approve or support it. However, the conformity provision itself
imposes no such standards or requirements. It simply imposes a
duty on federal agencies not to approve or support any activity
that does not meet standards, requirements, and milestones set
out in an SIP or the CAA.
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(iii) Schedule or Timetable of Compliance. Section
(iii) Schedule or Timetable of Compliance.
7602(p) defines a "schedule and timetable of compliance" to mean
"a schedule of required measures including an enforceable
sequence of actions or operations leading to compliance with an
emission limitation, other limitation, prohibition, or standard."
42 U.S.C. 7602(p) (1988). CLF argues that the conformity
provision is a "schedule or timetable of compliance" under
section 7604(f) because the "[c]onformity section
176(c)(1)(B)(iii) specifically prohibits federal agencies from
supporting any activity if it will 'delay timely attainment' of
the schedule of compliance set for nonattainment states like New
Hampshire to reach 15% emission reduction milestones in 1996 and
full ozone attainment in 1999." This argument is, however,
inapposite. The issue is not whether the conformity provision
requires the federal agency to determine that a project complies
with a schedule or timetable of compliance found elsewhere;
rather it is whether the conformity provision is itself a
schedule or timetable of compliance. Plaintiffs here are not
suing a polluter for violation of the schedule or timetable of
compliance referenced in section 176(c)(1)(B)(iii); they are
suing three federal agencies for approving and supporting a
project that may violate that schedule or timetable of
compliance.
It might be argued that the conformity provision itself
constitutes a "schedule or timetable of compliance" as defined by
section 7602(p) in that it requires federal agencies to follow
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"an enforceable sequence of actions . . . leading to compliance
with an emission limitation, other limitation, prohibition, or
standard." See 42 U.S.C. 7602(p). The conformity provision
requires federal agencies to follow a sequence of actions to
ensure a project's conformity with limitations and standards in
an existing SIP or with the NAAQS. Those actions, though not
specified in the statute, necessarily include analyses comparing
"the most recent estimates of emissions" in the proposed project
area with the projected emissions in the area were the project to
go forward, an assessment whether the project meets the specific
statutory criteria for conformity based on those analyses, and a
determination whether to support or approve the project. See 42
U.S.C. 7506(c)(1); see also Cate, 904 F. Supp. at 523 (finding
that an agreement requiring gas pipe line company to conduct
certain modeling and analyses for determining what measures would
eliminate violations of the NAAQS and to develop and submit a
plan specifying corrective measures and milestone dates for
instituting corrective measures constituted a "schedule" of
compliance within the meaning of 42 U.S.C. 7604(f)(1),
7602(p)).
We reject this argument, however, on the basis of the
EPA's interpretation of "compliance schedule" in its regulations
implementing the CAA. 40 C.F.R. 51.100 (1991). Section
51.100(p) defines "compliance schedule" to mean "the date or
dates by which a source or category of sources is required to
comply with specific emission limitations contained in an
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implementation plan and with any increments of progress toward
such compliance." (Emphasis added.) 40 C.F.R. 51.100(q)
defines "increments of progress" to mean "steps toward compliance
which will be taken by a specific source . . . ." (Emphasis
added.) These definitions make clear that a schedule of
compliance is a sequence of actions that a polluter must
undertake by certain specified dates in order to achieve
compliance with relevant emissions limitations or standards. The
conformity requirements themselves do not fall within that
definition.
2. Review under the APA, 5 U.S.C. 702
2. Review under the APA, 5 U.S.C. 702
Having concluded that citizen suit jurisdiction does
not extend to violations of the conformity provision, we turn to
the question whether judicial review is available under the APA.
In the absence of a contrary statutory provision, the APA
entitles a person aggrieved by final agency action to judicial
review and requires that agency action be set aside if
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." 5 U.S.C. 702, 706(2)(A) (1988); see
Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375
(1989). While the APA does not provide an independent source of
subject matter jurisdiction, it does provide a federal right of
action where subject matter jurisdiction exists under 28 U.S.C.
1331 (giving district courts jurisdiction of all civil actions
arising under the laws of the United States). See Japan Whaling
-22-
Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 n.4 (1986);
Califano v. Sanders, 430 U.S. 99, 104-07 (1977).
Defendants argue that 1331 cannot confer jurisdiction
over the conformity claims against the Air Force because, under
Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n,
453 U.S. 1 (1981), no implied private right of action exists
under the Clean Air Act. Defendants' reliance on Sea Clammers is
misplaced. In Sea Clammers, the Supreme Court held that a
comprehensive statutory enforcement mechanism complemented by
provisions for citizen suits precluded an implied private cause
of action for damages. See Sea Clammers, 453 U.S. at 17-18. But
an implied right of action is not a predicate for a right of
judicial review under the APA. See, e.g., Oregon Natural
Resources Council, 834 F.2d at 851. The central purpose of the
APA is to "provid[e] a broad spectrum of judicial review of
agency action." Bowen v. Massachusetts, 487 U.S. 879, 903
(1988). Therefore, "[a] cause of action for review of [agency]
action is available [under the APA] absent some clear and
convincing evidence of legislative intention to preclude review."
Japan Whaling, 487 U.S. at 904. The citizen suit provision of
the CAA provides no "clear and convincing evidence of legislative
intention to preclude review"; to the contrary, it includes an
explicit savings clause for other rights of relief. See 42
U.S.C. 7604(e) (1988) (preserving "any right which any person .
. . may have under any statute . . . to seek . . . any other
relief"); Oregon Natural Resources Council, 834 F.2d at 851 n.15
-23-
(same savings clause under Clean Water Act preserves right of
review under APA); Hough v. Marsh, 557 F. Supp. 74, 77-79 (D.
Mass. 1982) (same). Moreover, cases decided after Sea Clammers
have expressly recognized that the APA provides a right of review
of agency decisions precisely where a plaintiff's claim is not
covered by the citizen suit provision of the substantive act.
See, e.g., Oregon Natural Resources Council, 834 F.2d at 851;
Allegheny County Sanitary Auth., 732 F.2d at 1177;
Tidwell, 837
F. Supp. at 1355-57. Other cases cited by defendants are equally
inapposite since none involve judicial review of agency action.
See, e.g., Greenfield and Montague Transp. Area v. Donovan,
758
F.2d 22, 26 (1st Cir. 1985) ("mere existence of a disputed
question of federal law does not confer federal question
jurisdiction").
Finally, we must consider whether 42 U.S.C. 7607(b)
bars district court jurisdiction under the APA over the
conformity provision claim against the EPA. Section 7607(b)
provides for judicial review of "any . . . final action of the
Administrator" by the filing of a petition in the court of
appeals. In this case, plaintiffs complain that the EPA violated
section 7506 by approving and supporting the Pease project
without making the requisite conformity determination. The
obligation under that section runs to any "department, agency,
[and] instrumentality of the Federal Government." Action by the
EPA to comply with section 7506 is not action taken by it in its
capacity of administrator and enforcer of the CAA. The text of
-24-
the statute supports this distinction. Where it refers to
obligations imposed on the EPA by the CAA, it imposes those
obligations on the Administrator. See, e.g., 42 U.S.C.
7506(c)(4)(A)("the Administrator shall promulgate criteria and
procedures for determining conformity . . . of . . . the
activities referred to in [section 7506(c)(1)])"; 42 U.S.C.
7601(a)(1)("the Administrator is authorized to prescribe such
regulations as are necessary to carry out his functions under
this chapter"). And review under section 7607(b) is only "of
action of the Administrator." In summary, plaintiffs' claims
concern action taken by the EPA qua agency of the federal
government, not as administrator or enforcer of the CAA, and
hence are not subject to review under section 7607(b).
B. Conformity Determination in Absence of NEPA Compliance
B. Conformity Determination in Absence of NEPA Compliance
Plaintiffs argue that since the district court found
the air quality analyses used by the federal agencies deficient
and not in compliance with NEPA, it should not have addressed the
merits of the CAA claims. Neither the agencies nor the district
court, the argument goes, could make reasoned conformity
determinations under the CAA based on noncomplying air quality
analyses. The argument raises two separate issues: Was a
conformity determination precluded as a matter of law before
completion of the NEPA process? And, even if it was not, could
the Air Force and the FAA reasonably make such a determination
before the NEPA process had been completed here?
-25-
We can readily dispose of the first issue. Section
7506(c)(1) sets forth its own standards for evaluating
conformity. Nothing in that section or elsewhere in the CAA
requires the information on which a conformity determination is
based to have been subject to review, analysis, or public comment
pursuant to NEPA. Moreover, regulations issued by the EPA in
1993 prescribing procedures and criteria for conformity
determinations suggest no connection between NEPA and CAA
compliance. See 42 U.S.C. 7506(c)(4)(A); 40 C.F.R. Part 51,
Subpart W (1994); 40 C.F.R. Part 93, Subpart B (1994). To the
contrary, they specify that "[w]here multiple Federal agencies
have jurisdiction for various aspects of a project, a Federal
agency may choose to adopt the analysis of another Federal agency
or develop its own analysis in order to make its conformity
determination." 40 C.F.R. 93.154 (1994). And 40 C.F.R.
93.156(b) (1994) states that the 30-day comment period for an
agency's draft conformity determination "may be concurrent with
any other public involvement, such as occurs in the NEPA
process." We see no basis for engrafting a requirement that the
NEPA process be completed before a determination is made.
Plaintiffs next contend that the Air Force and the FAA
could not reasonably make the conformity determination before
completing the NEPA process. If the federal agencies had relied
entirely on the FEIS as the basis for their conformity
determinations, and if the district court had later found the
analyses in the FEIS deficient under NEPA on substantive grounds
-26-
that would also have affected the conformity analysis required by
the CAA, the CAA conformity determination might also have been
deficient. See, e.g., Sierra Club v. Sigler, 695 F.2d 957, 980-
83 (5th Cir.), reh'g denied, 704 F.2d 1251 (1983). That,
however, is not what happened here. The NEPA problem arose from
a failure to comply with the public comment requirement in that
the agencies relied for their conformity determination on
information and analyses that they had failed to include in the
FEIS or a Supplemental FEIS for public comment. The district
court found that those materials were a sufficient basis for the
conformity determinations; they simply should have been subject
to public review and comment to meet the requirements of NEPA.
See 864 F. Supp. at 284-85, 288. Because such public review and
comment are not required under the conformity provision of the
CAA, the NEPA violation did not affect the merits of the
conformity determination and hence does not require that we defer
passing on the conformity claims.
C. Conformity Determination by the EPA
C. Conformity Determination by the EPA
"In accordance with [the EPA's] responsibilities under
. . . [NEPA and CAA]," the EPA issued a review of the Air Force's
FEIS on August 14, 1991. In that review, the EPA addressed air
-27-
quality concerns related to the Pease project. It first reviewed
its earlier conclusions that the project's air impacts would
hinder New Hampshire's ability to achieve required reductions in
ozone precursor emissions and would cause violations of the CO
standards. The EPA then reviewed the terms of the MOU into which
it had entered with PDA and NHDES and concluded that the MOU
"provides a framework that, if successful, gives reasonable
assurance that the Pease development can proceed in compliance
with the CAA." The MOU itself quotes the text of section 7506(c)
and states that its purpose is to "accommodate the statutory
responsibilities of the Parties and provide assurance of orderly
and phased development in compliance with CAA requirements."
Moreover, the commitments in the MOU indicate that the EPA was
considering the specific statutory criteria in the conformity
provision. For example, the MOU specifies that, in the event the
CO air quality analysis required by the MOU shows that proposed
traffic increases from redevelopment "may cause or contribute to
a new violation of the carbon monoxide NAAQS," PDA must implement
measures necessary to reduce projected traffic increases and/or
air emissions impacts to a level which will not result in such a
condition. See infra pp. 48-50.
Section 7506(c) does not specify the form a conformity
determination must take; when the agencies acted, they had only
the statute to guide them because the regulations were not
adopted until 1993. Taking that fact into account, we think the
EPA's actions sufficiently reflect that it considered the
-28-
project's potential impact on air quality in light of the
conformity provision and, based on the commitments in the MOU,
see infra pp. 48-54, determined that the project could be carried
out in conformity with applicable air quality standards.
D. Agencies' Compliance with 42 U.S.C. 7506(c)(1)
D. Agencies' Compliance with 42 U.S.C. 7506(c)(1)
Having found that the EPA made the required conformity
determination, we now consider whether its determination and the
determinations made by the Air Force and the FAA complied with
the statute. As noted, the statute prohibits federal agencies
from supporting or approving a project unless that project
"conforms to an implementation plan after it has been approved or
promulgated under section 7410 of this title." 42 U.S.C.
7506(c)(1). "[C]onformity to an implementation plan means"
(A) conformity to an implementation plan's
purpose of eliminating or reducing the
severity and number of violations of the
national ambient air quality standards; and
(B) that such activities will not--
(I) cause or contribute to any new
violation of any standard in any area;
(ii) increase the frequency or severity of
any existing violation of any standard in any
area; or
(iii) delay timely attainment of any
standard or any required interim emission
reductions or other milestones in any area.
42 U.S.C. 7506(c)(1)(A),(B).
At the outset we note two relevant considerations:
First, no regulations interpreting these provisions had been
promulgated when the agencies made their conformity
determinations; therefore, they had only the words of the statute
to guide them. Second, a conformity determination is inherently
-29-
fact-intensive; therefore, what constitutes conformity is a
function of the unique characteristics of the project being
approved.
1. Substance of the Conformity Determinations.
1. Substance of the Conformity Determinations.
The EPA, the Air Force, and the FAA all determined that
the transfer and redevelopment of Pease met the conformity
requirements of section 7506(c)(1). As discussed above, evidence
that the EPA made a conformity determination is found in the MOU
and the EPA's review of the FEIS. See supra pp. 33-35. The Air
Force's conformity determination is contained in two documents:
its ROD, issued August 20, 1991, and its Memorandum for the
Record, issued March 20, 1992. The FAA's conformity
determination is contained in its ROD, issued February 26, 1992.
Those documents reveal the bases for the agencies' conformity
determinations. We now examine those bases to determine whether
the agencies abused their discretion when they found that the
Pease project met the conformity requirements of section
7506(c)(1).
The agencies relied on information and commitments
contained in various documents in making their conformity
determinations. The EPA, as previously noted, based its
conformity determination on the commitments made in the MOU. The
Air Force based its determination on the MOU, post-FEIS studies
conducted by NHDES and discussed in the letter of certification
written by Robert W. Varney, Commissioner of NHDES (Varney
letter), and the FAA's conditional approval of certain aspects of
-30-
the Pease project. Similarly, the FAA based its conformity
determination on the MOU, the NHDES studies and conclusions
discussed in the Varney letter, the Governor's letter of
assurance,3 and its own conditional approval of certain aspects
of the Pease project. Each of the bases of the agencies'
conformity determinations is briefly summarized below.
a. The Memorandum of Understanding. Because the
a. The Memorandum of Understanding.
FEIS concluded that air emissions likely to be generated by the
expected redevelopment of the airport would add to the level of
ozone precursor emissions4 experienced in the Portsmouth
Metropolitan Statistical Area and because of the EPA's concerns
about the air quality impacts of Pease redevelopment, the EPA,
PDA, and NHDES entered into an agreement--the MOU--"to
accommodate the statutory responsibilities of the Parties, and
provide assurance of orderly and phased development in compliance
with CAA requirements."
The MOU acknowledges that, because the region around
Pease was a serious nonattainment region for ozone, the 1990 CAA
amendments required New Hampshire to revise its SIP to achieve
3 Both the Air Force and the FAA cite Governor Judd Gregg's
February 13, 1992, letter of assurance (Governor's letter) as one
basis for their conformity determinations. Because the
Governor's letter relied primarily on the NHDES studies and the
Varney letter as the grounds for its assurance of conformity, we
do not discuss it separately.
4 Ozone precursors include nitrous oxide (NOx) and volatile
compounds (VOCs) such as hydrocarbons (HC). See 40 C.F.R.
51.852 (1995) (ozone precursors include NOX and VOCs); 40
C.F.R. 51.100(s) (1995) (VOCs include any compound of carbon
except those listed in regulation).
-31-
net reductions of 15% in total volatile organic compound (VOC)
emissions by November 15, 1996, and 3% each year thereafter,
until the region achieved compliance with the NAAQS for ozone.
To ensure compliance with the CAA and the SIP, PDA and NHDES
committed themselves, under the terms of the MOU, to take certain
actions.
With respect to carbon monoxide (CO) emissions, the MOU
provides that:
(1) PDA will undertake a surface transportation study
examining existing vehicle traffic patterns, projected
vehicle traffic increases associated with development,
and potential for alternative modes of transportation.
(2) Based on the results of the transportation study,
PDA will develop a comprehensive traffic model and
surface transportation master plan for the Pease area.
(3) Using the traffic model and periodically updated
traffic counts, PDA will undertake intermittent CO
analyses to determine compliance with the one and eight
hour CO NAAQS and report the results of all CO analyses
to EPA.
(4) In the event that the CO analyses demonstrate
that a proposed traffic increase from Pease
redevelopment may cause or contribute to a new
violation of the NAAQS for CO, PDA, in conjunction with
any other state agency whose participation may be
-32-
necessary, "will implement measures necessary to reduce
projected traffic increases and/or air emissions
impacts to a level which will not result in any
violation of, or any contribution to a violation of,
the NAAQS" for CO.
With respect to hydrocarbon (HC) emissions, PDA agreed
not to develop Pease beyond a level anticipated to generate 3.3
tons per day of HCs until New Hampshire revised its SIP to
accommodate greater emissions and the EPA approved the new SIP.
Finally, with respect to all emissions, NHDES agreed to
consult with PDA in preparing the revised SIP and to evaluate and
incorporate into the new SIP projected emission increases from
Pease redevelopment.
b. NHDES Studies and the Varney Letter. The Varney
b. NHDES Studies and the Varney Letter.
letter considered two possible readings of the conformity
requirements of section 7506(c)(1)(B): (1) that "the federal
agency need only determine that the proposed activity is in
conformity with the terms of the existing SIP," and (2) that "the
determination must address the three elements set forth in
[7506(c)(1)(B] . . . separately, regardless of the terms of the
SIP." The letter concluded that Pease development conformed
under either reading. This conclusion was based on studies of
air emissions completed by NHDES after the FEIS was issued.
These studies compared baseline emissions from 1989 (during full-
scale military operations at Pease) and 1990 (when the CAA
amendments were enacted and some military operations at Pease had
-33-
already ceased) with projected emissions to 1997.5 According to
the Varney letter, the emissions were not projected beyond 1997
because such projections would be too speculative and because by
1997 New Hampshire would adopt a new SIP to address any increases
in emissions.
Based on these studies, NHDES concluded, with respect
to ozone, that by 1997 emissions of HCs, ozone's primary
precursor, would likely reach approximately 2.5 tons per day, the
same level as Pease emitted in 1990, when military operations
were less than full-scale. At full-scale, HC emissions at Pease
had been variously estimated at 3.3 to 4 tons per day, which was
still in compliance with the existing SIP. Overall ozone levels
generated locally were expected to decline because older cars,
which produce more HCs, were slowly being replaced and because
"stage II vapor recovery at gasoline filling stations" was
commencing. For these reasons, projections of overall ozone
levels generated by the Pease area were expected to remain below
the 1989 and 1990 levels through Phase I of redevelopment.
With respect to CO emission levels, the NHDES studies
showed that, comparing 1989 and 1990 to 1997, Pease redevelopment
would not result in a significant increase in the air quality
region. And improvement of the intersection at Spaulding
Turnpike and Gosling Road (Spaulding Turnpike/Gosling Road
5 Projected emissions to 1997 took into account redevelopment
through Phase I of the Pease project, i.e., the first five years.
-34-
interchange) would significantly lessen CO levels locally during
the period studied.6
NHDES ultimately concluded that Pease redevelopment
satisfied the three conformity criteria set out in section
7506(c)(1)(B): that, through 1997, Pease redevelopment would not
cause or contribute to any new violation of any standard in any
area; increase the frequency or severity of any existing
violation of any standard in any area; or delay attainment of any
standard or any required interim emission reductions or other
milestones in any area.
NHDES also concluded that Phase I redevelopment would
not violate any specific provision of the SIP but rather would
"conform to the SIP's purpose of eliminating or reducing the
severity and number of violations of the national ambient air
quality standards, and achieving expeditious attainment of such
standards." See 42 U.S.C. 7506(c)(1)(A). NHDES reached this
conclusion for several reasons: (1) the existing SIP was
developed when Pease was fully operational and incorporated
emissions from Pease at that level of operation; (2) Phase I of
Pease redevelopment was expected to produce fewer emissions than
6 Although the NHDES studies noted that the "air quality region"
had "no historic attainment or maintenance problem with carbon
monoxide" NAAQS, the air quality analysis in the FEIS had shown
present and ongoing violations of the NAAQS for CO at the Gosling
Road/Spaulding Turnpike interchange, the main gate to Pease.
Post-FEIS supplemental air quality modeling of the interchange
area, based on corrected data, showed that CO levels at the
interchange would stay within the NAAQS through Phase I of
redevelopment upon completion of scheduled improvements at the
interchange.
-35-
the base produced during full operation; and (3) increased levels
of emissions from later stages of development would be taken into
account in the future SIP.
c. FAA's Approval of Airport Redevelopment. The FAA
c. FAA's Approval of Airport Redevelopment.
reviewed the Airport Layout Plan (ALP), PDA's proposal to
redevelop airport-related property at Pease, as required by the
Surplus Property Act. In its ROD, it approved each of the items
in the ALP, either unconditionally or conditionally, and
recommended that the Air Force proceed with its proposal to make
property at Pease available for use as a civilian airport. It
gave unconditional approval to the minor, interim and Phase I
redevelopment outlined in the ALP but, to ensure conformity, only
conditional approval to key items in the ALP. It concluded that
its approval "conform[s] with the approved SIP."
Regarding the later phases of the redevelopment, which
could have a significant impact on air quality, FAA approval will
be required once plans for them are made final and proposed for
implementation; that approval will be granted only after the FAA
determines whether additional air quality analysis and a new
conformity finding are required. Further, FAA approval will be
required for any new projects not depicted in the ALP, providing
additional assurances of conformity.
2. Plaintiffs' Challenges of the Conformity
2. Plaintiffs' Challenges of the Conformity
Determinations.
Determinations.
Plaintiffs charge that the agencies' conformity
determinations ignore evidence demonstrating that redevelopment
-36-
would cause new CO violations, increase existing ozone
violations, and delay attainment of the clean air standards.
Instead of properly addressing these problems prior to approval
of the project, they contend, the agencies improperly shifted to
New Hampshire the burden of achieving future conformity through
amendments to the SIP.
a. Evidence of Violation of Conformity Criteria.
a. Evidence of Violation of Conformity Criteria.
Plaintiffs contend that the redevelopment of Pease will cause new
violations of the NAAQS for CO, increase violations of the NAAQS
for ozone, and delay attainment of CAA standards, in
contravention of section 7506(c)(1)(B).
(i) Evidence Regarding Effects of Phase I
(i) Evidence Regarding Effects of Phase I
Redevelopment. The NHDES studies discussed in the Varney letter
Redevelopment.
and the post-FEIS studies on the Spaulding Turnpike/Gosling Road
interchange indicate that Phase I redevelopment activities will
conform to the section 7506(c)(1)(B) criteria, as long as New
Hampshire improves the Spaulding Turnpike/Gosling Road
interchange as required.7 As discussed above, NHDES studies
used 1989 and 1990 emissions estimates as the baseline for
performing the conformity analyses. The EPA, Air Force, and the
FAA adopted those studies in making their conformity
determinations.
7 New Hampshire is committed to making these improvements
because, as noted above, NHDES's conclusion that Pease
redevelopment through Phase I meets the conformity criteria was
based on the assumption that this interchange would be improved.
See supra p. 42 n.6. Similarly the FAA's conformity
determination was based in part on improvement of the Spaulding
Turnpike/Gosling Road interchange.
-37-
Section 7506(c)(1)(B) states that "[t]he determination
of conformity shall be based on the most recent estimates of
emissions . . . ." NHDES explained that it selected 1989 and
1990 rather than 1991 (the year it performed the analysis) as
baseline years because 1989 was
"the most recent year representative of full-
scale military operation at Pease. This
appears to us to be the most relevant
comparison, since Congress's intention in
Section [7506(c)] is clearly to evaluate new
developments in the context of pre-existing
conditions . . . . We assume that Congress
did not intend that a project like Pease
redevelopment would be penalized under
[7506(c)] because there is a temporal gap
between the federal government's decision to
terminate operations at Pease and the start-
up of the State's redevelopment of the base,
during which a temporary reduction in the
emission inventory occurred as a result of
activity phase-down."
Use of 1991 as a baseline, it added, "would unfairly penalize the
Pease redevelopment project, since 1991 emissions of CO, NOX and
VOCs are significantly less than historical norms because of the
Air Force's cessation of activities at Pease."
Under the Chevron doctrine, an agency's interpretation
of a statute is entitled to weight when the statute is silent or
ambiguous. See Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-3 (1984). As an
abstract matter, the words of the statute, "most recent
estimates," would not be considered ambiguous; a literal
interpretation would require the agencies to use 1991 data. See
42 U.S.C. 7506(c)(1)(B) (conformity determination "shall be
-38-
based on the most recent estimates of emissions . . . .")
(emphasis added).
Courts have, however, recognized that "[a] statute may
be ambiguous if its application leads to an irrational or absurd
result." Ewing v. Rodgers, 826 F.2d 967, 970 n.3 (10th Cir.
1987) (citing In re Rodman, 792 F.2d 125, 128 n.8 (10th Cir.
1986)); see also United States v. Real Estate Known as 916
Douglas Ave., 903 F.2d 490, 492 (7th Cir. 1990), cert. denied,
498 U.S. 1126 (1991). Courts have also recognized that "[t]he
plain meaning of legislation should be conclusive, except in the
'rare cases [in which] the literal application of a statute will
produce a result demonstrably at odds with the intentions of its
drafters.'" United States v. Ron Pair Enters., 489 U.S. 235, 242
(1989), (quoting Griffin v. Oceanic Contractors, Inc. 458 U.S.
564, 571 (1982)) (emphasis added). This appears to us to be one
of those rare cases where the plain meaning would lead to a
result that is irrational and at odds with the intention of the
legislature. Read literally, the plain language of the statute
as applied in base-closing cases would require conformity
determinations to be based on a wholly artificial situation, the
interval during which military operations have shut down and
civilian activities not yet started. The likely consequence in
many cases would be to preclude any economically beneficial use
of a closed military base. Such a result is irrational and
presumably unintended by Congress. In view of Congress's strong
support of civilian redevelopment of closed military bases, see
-39-
infra pp. 57-58, it would not have wanted to erect a major
obstacle to economically beneficial, post-closing uses of a base.
Thus, the agencies' reliance on the NHDES studies based on 1989
and 1990 estimates was reasonable under the circumstances. Those
studies support the determination that Phase I redevelopment
meets the statutory conformity criteria.
(ii) Evidence Regarding Effects of Post-Phase I
(ii) Evidence Regarding Effects of Post-Phase I
Redevelopment. Other air quality studies conducted by NHDES,
Redevelopment.
however, suggest potential violation of the conformity criteria
in later phases of Pease redevelopment, absent mitigation
measures. With respect to CO emissions, the FEIS indicated that
by the year 2010 redevelopment was expected to generate 68,000
daily vehicle trips into the Pease area. The main area of
concern for traffic congestion causing emissions increases is the
intersection of Spaulding Turnpike and Gosling Road. Post-FEIS
air quality studies of that intersection indicated that, while
construction of the new Spaulding Turnpike/Gosling Road
interchange by NHDOT would bring the area into compliance with
NAAQS for CO through the end of the decade, traffic volumes
associated with Pease redevelopment and regional growth through
the full build-out year 2010 could cause violations unless a
second entrance interchange to Pease was constructed.
Redevelopment would therefore contribute to new violations of the
NAAQS for CO sometime after the turn of the century.
Similarly, an EPA memorandum dated July 24, 1991,
indicated that, while Phase I of Pease redevelopment was expected
-40-
to generate only 2.5 tons per day of HCs (a major ozone
precursor), Phase II extending to the year 2002 was estimated to
generate 4.8 tons per day. At that level, Phase II would
increase existing violations, as well as delay attainment, of the
NAAQS for ozone absent some other changes or the institution of
mitigation measures.
b. Mitigation Measures. Plaintiffs contend that the
b. Mitigation Measures.
supporting agencies improperly shifted the burden of compliance
to New Hampshire and the SIP process and that the mitigation
measures agreed to by the parties failed to meet the statutory
criteria of the conformity provision.
(i) Carbon Monoxide. With respect to CO emissions,
(i) Carbon Monoxide.
the MOU requires PDA to conduct a surface transportation study,
develop a traffic model and master plan for the Pease area,
conduct intermittent CO analyses, and implement mitigation
measures as needed. As to the latter, the MOU states
categorically that "PDA, and if necessary in conjunction with any
other appropriate state agency, will implement measures necessary
to reduce projected traffic increases and/or air emissions
impacts to a level which will not result in any violation of, or
any contribution to a violation of, the NAAQS for carbon
monoxide." (Emphasis added.)
These commitments are sufficient to ensure compliance
with the statutory requirement that Pease redevelopment "will not
cause or contribute to any new violation" of the NAAQS for CO,
see 42 U.S.C. 7506(c)(1)(B)(I), for two reasons.
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First, PDA's open-ended commitment to implement
necessary mitigation measures includes by implication a
commitment to implement the mitigation measures already
identified in the area of the Spaulding Turnpike/Gosling Road
interchange. Specifically, it includes a commitment by PDA,
along with NHDOT and other necessary state agencies, to build the
second access to Pease, unless later studies reveal preferable
alternatives for satisfying the commitment. See supra pp. 38-39.
Corroborating this commitment is a July 31, 1991,
letter from PDA to the Air Force stating that compliance with the
NAAQS would require completion of improvements to the Spaulding
Turnpike/Gosling Road interchange as well as construction of a
second access to Pease prior to the time the improved interchange
reaches maximum capacity. To permit construction of the second
access, PDA requested that a portion of the golf course at Pease
be made available. In the Application and Acceptance for the
transfer of airport property, the Air Force agreed to transfer
the needed portions of the golf course.
Second, the agreement requiring ongoing studies and
analyses and implementation of mitigation measures as needed was
a reasonable way to ensure conformity under the circumstances.
The details of the redevelopment project are not fixed and its
time line is extended. As the FAA pointed out in its ROD, air
quality impacts stemming from certain aspects of the airport
development were speculative when the conformity determinations
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were made because the project-specific design detail necessary to
assess those impacts properly and develop a range of alternative
mitigation measures was lacking. Similarly, the nonaviation
business tenants at the on-airport industrial park had not yet
been selected. In addition, over the 20-year life of Pease
redevelopment, other environmental factors in the region, as well
as technologies available to address them, may change. Given
these uncertainties, a commitment to pursue ongoing studies and
analyses and to implement appropriate mitigation measures based
on demonstrated needs was a reasonable approach to meeting the
statutory requirement.
(ii) Ozone Precursors. With respect to ozone
(ii) Ozone Precursors.
standards, the MOU requires NHDES to work with PDA and
incorporate projected emissions from Pease redevelopment into the
SIP revisions.8 Unless and until the new SIP is approved,
however, it bars PDA from developing Pease "beyond the level
anticipated to generate 3.3 tons per day of hydrocarbon
emissions"--the level of emissions from Pease permitted under the
existing SIP. Thus, the MOU does not place the entire burden of
addressing HC emissions on the SIP process.
To the extent that the MOU does rely on the SIP process
to deal with projected increases in HC emissions, however, it
8 According to the 1990 Amendments, New Hampshire was required
to revise its SIP to achieve at least a 15% reduction in VOC
emissions (including HCs) from 1990 levels on or before November
of 1996 (accounting for any growth in emissions after 1990), and
3% additional annual reductions on average thereafter through
1999. See 42 U.S.C. 7511a(b)(1)(A) & (c)(2)(B) (Supp. III
1991).
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does so properly under the circumstances. The 1990 CAA
amendments required New Hampshire to revise its SIP to address
VOC emissions (which include HC emissions) within approximately
three years. See 42 U.S.C. 7511a(c), (b)(1). See supra p.
14. NHDES's commitment to consult with PDA and incorporate
emissions from Pease development into required revisions of the
SIP is consistent with the SIP process and NHDES's role as the
state agency responsible for developing the SIP. While the EPA
and the legislature set ultimate standards and goals--including
the NAAQS and deadlines for attaining them--the state prescribes
in its SIP how it will achieve those goals. See 42 U.S.C.
7407. Thus, if NHDES chooses to incorporate into the required
revisions of the SIP certain levels of emissions from the Pease
project, that is its prerogative under the statutory SIP process.
By agreeing to incorporate Pease emissions into SIP
revisions that will reduce overall ozone-precursor emissions in
the region, NHDES has enabled PDA to undertake the redevelopment
without increasing the severity of or delaying attainment of the
NAAQS for ozone. Presumably New Hampshire will accommodate
increased HC emissions from Pease and achieve interim required
emissions reductions and timely attainment of the NAAQS for ozone
by cutting VOC emissions in other areas. This will permit later
stages of Pease redevelopment to go forward without increasing
existing violations of the NAAQS for ozone or delaying attainment
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of the NAAQS for ozone or other CAA standards. 42 U.S.C.
7506(c)(1)(B)(ii), (iii).
Unless and until a new SIP incorporating higher levels
of emissions from Pease is approved, however, the MOU prohibits
redevelopment of Pease beyond a level producing 3.3 tons per day
of HC emissions. While the cap is in compliance with the terms
of the existing SIP, it is not so clear it will ensure that Pease
redevelopment activities will not increase the severity of
existing ozone violations and delay compliance with ozone
standards. Whether redevelopment will increase the severity of
existing violations depends in part on the baseline emissions.
When compared to 1989 emissions, 3.3 tons per day represents no
increase in the severity of violations of the NAAQS for ozone.
Because, as we stated earlier, use of 1989 estimates is
reasonable under the circumstances, see supra pp. 45-47, and
because the existing SIP permits this level of emissions, the
provisions of the MOU satisfy the conformity requirements under
section 7506(c)(1)(B)(ii).
Regarding delaying attainment of the ozone standards,
plaintiffs appear to suggest that to meet the section
7506(c)(1)(B)(iii) criteria, emissions from the Pease project
must be consistent with the VOC emissions reductions set out in
42 U.S.C. 7511a(c)(2). Prior to incorporation into a revised
SIP, however, these reductions apply only in conformity decisions
related to transportation plans, programs and projects and
therefore are not relevant here. See 42 U.S.C.
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7506(c)(3)(A)(iii); see also 136 Cong. Rec. S16973 (October 27,
1990) (Statement of Senator Baucus, sponsor and manager of the
Senate bill) ("[Transportation] plans and programs adopted for
areas that are nonattainment for ozone or carbon monoxide during
the interim period shall contribute to annual emission reductions
consistent with the emissions reductions schedules adopted in the
bill for such areas. . . .") (emphasis added).
IV. THE CERCLA CLAIM
IV. THE CERCLA CLAIM
Newington claims that the Air Force's 55-year lease of
portions of Pease to PDA violates section 120(h)(3)(B)(i) of
CERCLA (42 U.S.C. 9620(h)(3)(B)(I)). The district court had
jurisdiction over the claim under 42 U.S.C. 9613(b) (1988).
Section 120 was added by the 1986 Superfund Amendments and
Reauthorization Act (SARA), Pub. L. No. 99-499, 100 Stat. 1613
(1986), to address issues concerning hazardous waste on
federally-owned sites. Section 120(a) subjects federal agencies
to CERCLA. Subsections (b) through (f) outline a comprehensive
program to identify and remediate hazardous waste sites.
Subsection (h) deals with transfers of property on which
hazardous substances are known to have been released or disposed
of. Subsection (h)(1) requires notice of such release or
disposal in any contract "for the sale or other transfer of real
property which is owned by the United States."
Subsection (h)(3) addresses the "contents of certain
deeds." Before its recent amendment, it required that
. . . in the case of any real property owned
by the United States on which any hazardous
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substance was stored for one year or more,
known to have been released, or disposed of,
each deed entered into for the transfer of
such property by the United States to any
other person or entity shall contain--
(B) a covenant warranting that--
(i) all remedial action necessary to
protect human health and the environment with
respect to any such substance remaining on
the property has been taken before the date
of such transfer, . . . .
42 U.S.C. 9620(h)(3).
Newington argues that section 120(h)(3) prohibits the
federal government from transferring contaminated property until
it has constructed, installed and is successfully operating clean
up procedures and mechanisms that ensure full remediation.
Although section 120(h)(3) by its terms applies to deeds,
Newington contends that the substance of the transaction should
control and that the government should not be permitted to avoid
the mandate of the statute by labeling the transaction a lease.
The District Court held that the transfer without an approved
remedial design violated section 120(h) of CERCLA, and that the
failure to disclose in the FEIS the decision to transfer by way
of a long-term lease rather than deed violated NEPA. See 864
F. Supp. at 290. Although the court declined to hold the leases
void, it directed the Air Force to prepare a supplemental FEIS
delineating the remedial design. Newington contends that the
relief granted is inadequate to secure compliance with section
120(h).
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Any question about whether section 120(h)(3) applies to
long-term leases has been laid to rest by the 1996 amendment of
that section, adding the following language:
The requirements of subparagraph (B) [of a
covenant warranting completion of all
necessary remedial action] shall not apply in
any case in which the transfer of the
property occurs or has occurred by means of a
lease, without regard to whether the lessee
has agreed to purchase the property or
whether the duration of the lease is longer
than 55 years.
National Defense Authorization Act for Fiscal Year 1996, Pub. L.
No. 104-106, 2834, 110 Stat. (1996).
"When a case implicates a federal statute enacted after
the events in suit, the court's first task is to determine
whether Congress has expressly prescribed the statute's proper
reach." Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1505
(1994). In this case, Congress left no doubt that the amendment
was to apply to the instant lease. The Conference Report on the
Defense Authorization Act states in part that section 2834
"addresses a recent federal district court decision that could
undermine reuse plans at military installations selected for
closure with similar reuse plans. The provision serves to
clarify the legislative intent on the issue." H.R. Conf. Rep.
No. 450, 104th Cong., 2d Sess. [1996 WL 33108 at 1724 (LH data
base)] (1996). Senator Bob Smith of New Hampshire, the sponsor
of the amendment, explained that the need for the amendment arose
out of the District Court's decision in this case which "has . .
. placed a cloud over redevelopment efforts at Pease . . . [and]
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has helped to hinder the expedited redevelopment of facilities
across the Nation that are being closed under the Base Closure
and Realignment Act . . . . The language that was included in
section 2824 . . . was intended to modify section 120(h)(3) . . .
to provide that the Department of Defense may enter into long-
term . . . leases while any phase of the cleanup is ongoing . . .
. [N]ot only are existing leases appropriate, but future leases
may be entered into . . . ." 141 Cong. Rec. S11557 (daily ed.
Aug. 5, 1995) (statement of Sen. Smith). The recent amendment
validates the Air Force's lease to PDA under CERCLA.
V. THE NEPA CLAIM
V. THE NEPA CLAIM
The federal defendants do not appeal the district
court's order finding a violation of "the public disclosure
requirements of NEPA" and directing the Air Force to "compile a
Supplemental FEIS." With regard to the NEPA claims against the
FAA, the FAA adopted the FEIS prepared by the Air Force;
therefore, the district court's decision that the FEIS was
deficient under NEPA binds the FAA. The only NEPA issue before
us then is plaintiffs' appeal of the district court's denial of
injunctive relief for the NEPA violations.
Plaintiffs first attack the denial of injunctive relief
on the ground that the district court failed to make findings of
fact and conclusions of law sufficient to meet the requirements
of Fed. R. Civ. P. 52. Plaintiffs contend that the court failed
to provide sufficient factual or legal support for its conclusion
that plaintiffs "have [not] demonstrated the irreparable harm
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necessary for granting a preliminary injunction." See, 864 F.
Supp. at 292. "The purpose of Rule 52(a), pertinent to
injunctions, is to provide the appellate court with a clear
understanding of the decision." Wynn Oil Co. v. Purolator
Chemical Corp., 536 F.2d 84, 85 (5th Cir. 1976). "Rule 52(a)
calls for a level of detail adequate to permit appellate review
on factual issues, and what is adequate depends on the importance
of an issue, its complexity, the depth and nature of evidence
presented, and similar elements that vary from case to case."
Knapp Shoes, Inc. v. Sylvania Mfg. Corp., 15 F.3d 1222, 1228 (1st
Cir. 1994). Although the district court did not discuss its
factual or legal reasons for concluding that the plaintiffs did
not suffer irreparable harm, its lengthy opinion provides a
detailed discussion of the factual and legal bases for its
substantive conclusions. That discussion, along with the
voluminous and undisputed documentary evidence in the record,
provides this court with sufficient information to determine
whether the district court abused its discretion in denying
injunctive relief; thus, the omission of a statement of reasons
for the denial of injunctive relief was at most harmless error.
See, e.g., Associated Elec. Coop., Inc. v. Mid-America Transp.
Co., 931 F.2d 1266, 1272 (8th Cir. 1991) ("failure to make
findings of fact and conclusions of law may be harmless error
where, as here, most relevant facts are undisputed and the law
can be applied without the district court's assistance"); Koerpel
v. Heckler, 797 F.2d 858, 866 n.4 (10th Cir. 1986) (even though
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district court "should have elaborated on the facts which formed
the basis for its conclusions . . . [s]uch an omission is,
however, harmless error because the record supports such
findings") (citation omitted); Huard-Steinheiser, Inc. v. Henry,
280 F.2d 79, 84 (6th Cir. 1960) (failure of district court to put
on record findings of fact and conclusions of law resulted in no
prejudicial error where record clearly disclosed basis upon which
denial of injunction rested). Plaintiffs next challenge the
court's decision to deny injunctive relief on the merits.
Whether to grant injunctive relief under NEPA is governed by
traditional equity standards. Sierra Club v. Marsh,
872 F.2d
497, 503-04 (1st Cir. 1989). The court must consider the
plaintiffs' likelihood of success on the merits, whether the
plaintiffs would suffer irreparable harm without an injunction,
the appropriate "balance" of harms to the plaintiffs and the
defendants, and the effect upon the public interest. Planned
Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st
Cir. 1981).
We review orders granting or denying injunctions for
abuse of discretion. Celebrity, Inc. v. Trina, Inc., 264 F.2d
956, 958 (1st Cir. 1959). "District courts have broad discretion
to evaluate the irreparability of alleged harm and to make
determinations regarding the propriety of injunctive relief." K-
Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir.
1989) (quoting Wagner v. Taylor, 836 F.2d 566, 575-76 (D.C. Cir.
1987)).
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The district court denied injunctive relief on the
ground that plaintiffs would suffer no irreparable harm.
Plaintiffs challenge this finding, relying on Sierra Club v.
Marsh, 872 F.2d 497 (1st Cir. 1989), and Massachusetts v. Watt,
716 F.2d 946 (1st Cir. 1983). In those cases, we found
irreparable harm to exist when agencies become entrenched in a
decision uninformed by the proper NEPA process because they have
made commitments or taken action to implement the uninformed
decision. See
Watt, 716 F.2d at 951-53;
Marsh, 872 F.2d at 499-
503. Our rationale derived from the purpose of NEPA: "NEPA is
designed to influence the decision making process" by making
"governmental officials notice environmental considerations and
take them into account." Watt, 716 F.2d at 952. "Thus, when a
decision to which NEPA obligations attach is made without the
informed environmental consideration that NEPA requires, the harm
that NEPA intends to prevent has been suffered." Id. That harm
is not merely a procedural harm, but is "the added risk to the
environment that takes place when governmental decision makers
make up their minds without having before them an analysis (with
prior public comment) of the likely effects of their decision
upon the environment."
Marsh, 872 F.2d at 500.
Plaintiffs argue that, without an injunction,
development of Pease will continue and they will suffer the kind
of irreparable harm we described in Watt and Marsh. As we
emphasized there, however, our holdings did not mean "that a
likely NEPA violation automatically calls for an injunction; the
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balance of harms may point the other way." See Marsh, 872 F.2d
at 504 (quoting
Watt, 716 F.2d at 952) (emphasis added). In Watt
and Marsh, plaintiffs moved for injunctions in the earliest
stages of development of the projects at issue, when NEPA
injunctions could implement the statutory purpose in the sense
that "bureaucratic decision makers . . . are less likely to tear
down a nearly completed project than a barely started project."
Marsh, 872 F.2d at 500. In contrast, plaintiff here, well aware
of the defective FEIS, waited nearly three years before moving
for injunctive relief. CLF filed its complaint in March 1992,
some six months after the challenged FEIS and ROD were issued;
Newington filed its complaint in June 1992. Both complaints
recited requests for permanent injunctions in their prayers for
relief. Despite these early references to equitable relief,
however, neither CLF nor Newington ever moved to restrain or
enjoin any aspect of the project. When the cases came before the
district court on cross-motions for summary judgment, plaintiffs'
briefs focused on the merits of the substantive claims, not the
need for injunctive relief. Only after the entry of the court's
order granting summary judgment in part did plaintiffs argue, in
a motion to amend, that they were entitled to broad injunctive
relief.
To be taken into account in assessing the balance of
harms is the fact that between the time when plaintiffs filed
suit and when they ultimately moved for injunctive relief,
significant commitments were made to the Pease project. The
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State of New Hampshire issued $8 million in general obligation
bonds to fund the operation of PDA and $40 million in guaranteed
bonds to help finance the location of two major tenants at Pease;
construction contracts aggregating $50 million were entered and
federal grants of more than $6 million received to support the
airport operations; and more than 1,100 persons became employed
by tenants and agencies as a result of the development project.
These commitments would be placed at risk if an injunction were
granted.
Thus, the type of public and private commitments with
which Watt and Marsh were concerned had already been made here by
the time plaintiffs sought injunctive relief. If harm was done,
it largely had been done, not by the court's denial of injunctive
relief, but by plaintiffs' failure to timely seek it. While it
is true that as development continues other actions will be taken
to implement the project, their impact will be only incremental.
Future risks of environmental harm will be minimized, moreover,
by the district court's retention of jurisdiction under its order
that the Air Force compile a Supplemental FEIS, by the Air
Force's commitment to this court that it "will use the SEIS to
review its August 1991 ROD and April 1992 Supplemental ROD," and
by the continuing oversight responsibilities of the FAA under the
Surplus Property Act and of the EPA under the CAA.
Under these circumstances, it was not an abuse of
discretion for the district court to deny the injunctive relief
sought.
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VI. CONCLUSION
VI. CONCLUSION
We reverse the district court's determination that
defendants violated CERCLA and affirm the judgment below in all
other respects. Pending the completion of the Supplemental FEIS
on which the FAA is working in conjunction with the Air Force, we
retain jurisdiction under the petitions of the NEPA claims
against the FAA but dismiss the CAA claims against it.
SO ORDERED.
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