Foundation, Inc. v. James Busey FAA
Case Date: 04/02/1996
Court: United States Court of Appeals
Docket No: 92-1335
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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] __________________________ ____________________ -2- 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. -3- 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 -4- 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 -5- 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 -6- 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 -7- 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 ___ ______ -9- 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. -10- 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 -11- 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 ________________________ _______________________ -12- 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. -13- 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). ________ -14- 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). -15- 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. -16- (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 ___ -17- (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." -18- 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. -19- (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 -20- "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 -21- 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 th |