ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Weis and Garth, Circuit Judges. Before Adams, Gibbons, Hunter, Weis, Garth, Sloviter and Becker, Circuit Judges.
On August 29, 1978, after two years of litigation over the Commonwealth of Pennsylvania's alleged failure to comply with the Clean Air Act of 1970, 42 U.S.C. § 7401 et seq., the Commonwealth and its Departments of Transportation and Environmental Resources consented to a decree in federal court. The two other parties to the decree were the Delaware Valley Citizens' Council for Clean Air and the United States. The decree provided for the establishment and implementation of a program for the inspection and maintenance of automobile emissions systems (the "I/M program") with the aim of reducing the level of carbon monoxide and ozone pollution in the Philadelphia and Pittsburgh areas. In this appeal, the Commonwealth challenges three orders entered by the district court which relate to that decree.
The first order, entered May 20, 1981, denied a request by the Commonwealth for a 20-month extension of the deadline for implementation of the I/M program and declared the Commonwealth to be in violation of the consent decree. The second order, filed June 16, 1981, modified the consent decree to require monthly state audits of emissions inspection stations, the establishment of two official "referee" stations to handle consumer complaints, and the certification by the Commonwealth of at least 3,000 inspection stations by May 1, 1982. The third order, filed July 14, 1981, refused a Commonwealth request for reconsideration of the June 16 order.
We note at the outset that the Environmental Protection Agency's State Implementation Plan for Pennsylvania originally called for the implementation of an I/M program by May 1, 1975. 40 C.F.R. § 52.2038(d)(6) (1981). That implementation date was subsequently extended by the consent decree and modifications of that decree, first to August 1, 1980, then to May 1, 1981, and ultimately to May 1, 1982. Thus, by the time the I/M program is to be implemented, on May 1, 1982, the program will already be seven years behind schedule.
Our scope of review on this appeal is narrow: whether, in its orders modifying and refusing to modify the consent decree, the district court abused its discretion. Because we find no abuse of discretion by the district court in this case, we will affirm each of the three orders in question.
In April, 1973, the Pennsylvania Department of Environmental Resources submitted to the EPA, in accordance with the Clean Air Act, a proposed plan for meeting federal ambient air quality standards for carbon monoxide and ozone. As modified and promulgated by the EPA in November, 1973, this plan included a provision calling for the implementation of an I/M program by May 1, 1975. 40 C.F.R. § 52.2038 (1981).*fn1 The Commonwealth petitioned this court to review some aspects of the plan promulgated by the EPA, but did not seek review of the I/M requirement or of the May 1, 1975 date for implementation of the I/M program. Commonwealth of Pa. v. EPA, 500 F.2d 246 (3d Cir. 1974).
More than a year after the Commonwealth had been required to implement its I/M program, the Commonwealth had not yet undertaken to meet its obligation and the EPA, for its part, had not undertaken its mandatory duty to enforce the Commonwealth's obligation under the plan. Accordingly, on June 29, 1976, the Delaware Valley Citizens' Council for Clean Air instituted a citizens' lawsuit, under 42 U.S.C. § 7604, against the Commonwealth and the EPA. Subsequently, the EPA was dismissed as a defendant when it agreed to file its own complaint against the Commonwealth, and the two cases were consolidated.
Following prolonged discovery and negotiations the parties reached agreement on a consent decree which the district court approved on August 29, 1978. App. at 24. The consent decree called for the establishment and implementation of a program in which all gasoline-powered motor vehicles weighing 11,000 pounds or less registered in ten counties in the Philadelphia and Pittsburgh areas*fn2 would be inspected annually for excessive pollutants in their exhaust. Owners of vehicles failing the emission tests would be required to have maintenance performed on their vehicles to reduce their discharge of pollutants. Operation of vehicles which were not in compliance with the I/M program would be prohibited, with fines assessed for violations. The I/M program was designed to achieve a substantial reduction in hydrocarbon and carbon monoxide exhaust emissions by December 31, 1987. By that time, it was projected that the exhaust levels would be 25 percent less than they would have been without the program.
The consent decree provided that the Pennsylvania Department of Transportation would first seek legislation instituting a "franchise" I/M system.*fn3 If the Pennsylvania legislature failed to enact such legislation by July 1, 1979, the Department of Transportation was to promulgate regulations providing for a "private garage" I/M system.*fn4 Consent Decree, Aug. 29, 1978, P 4; App. at 30. The deadline for the implementation of the private garage system-the date when mandatory annual inspection of vehicles would begin-was originally set at August 1, 1980. Id. Sched. B, P 7; App. at 46.
When the legislature failed to pass enabling legislation for a "franchise system," the Department of Transportation embarked upon the process of implementing the I/M program through the certification of "private garages." Presumably, "private garages" would be induced to obtain certification by the prospect of charging motorists for performing inspections and for any necessary resulting repairs. Certification would be conducted in two stages. In Phase I, garages would be certified as having adequate space, lighting, and equipment. In Phase II, the garages would have to obtain approved emissions analyzing equipment and hire a certified emissions inspector.
In late 1979 the Commonwealth requested and obtained agreement from Delaware Valley and the EPA to modify the original consent decree so as to delay implementation of the I/M program until May 1, 1981. This modification was approved by the district court on March 7, 1980. App. at 54. On February 1, 1981, just three months before the I/M program was scheduled to be implemented under the then-existing consent decree, the Commonwealth had still not published final regulations covering the vehicle emissions analyzing equipment which private garages would have to procure in order to become certified inspection stations. On February 6, 1981 the Commonwealth requested Delaware Valley and the EPA to consent to another modification of the consent agreement so as to delay the start of the I/M program until January 1, 1983. The need for the 20-month delay was to permit the Commonwealth to require the use of "computerized analyzer" testing equipment. This type of equipment had been recommended by the EPA for decentralized inspection programs such as the Commonwealth's, since it offered greater accuracy and would therefore enhance public confidence in I/M programs. However, this computerized equipment had not yet been produced by any manufacturer, not even in prototype.
This request for modification was the subject of negotiations among the parties but the parties failed to reach agreement and negotiations came to an impasse on April 28, 1981. On April 29, 1981 the Commonwealth filed a motion with the district court for a modification of the existing consent decree which would delay the start-up of the I/M program from May 1, 1981 to January 1, 1983. On May 1, 1981, Delaware Valley filed a motion to have the court hold the Commonwealth in violation of the consent decree's requirement that the Commonwealth implement the I/M program by May 1, 1981.
Following a court conference on May 6, 1981, the EPA, at the court's request, submitted a brief report on the current air quality in the Philadelphia and Pittsburgh areas. The report demonstrated that, while air quality in the two regions was improving or presently adequate in respect to some EPA standards, it continued to be inadequate in respect to other EPA standards. For example, the ozone level in the Pittsburgh area not only failed to meet the standard, but had become worse over the preceding two years. In the Philadelphia area, the ozone level, while decreasing, was still at nearly twice the concentration permitted by the EPA standard. Id. at 377. After receiving the EPA report, the district court issued its order of May 20, 1981 denying the Commonwealth's request for a modification of the consent decree which would extend the I/M program implementation date for another 20 months. The court also found the Commonwealth in violation of the existing decree in that the Commonwealth had not complied with the May 1, 1981 deadline for I/M program implementation as specified in the decree. Id. at 385.
The May 20 order also directed the Commonwealth to submit "a proposed plan for the Court's consideration, providing for the immediate implementation of the I/M program in accordance with the Consent Decree." Id. at 389. The Commonwealth submitted its proposed plan on June 1 and Delaware Valley submitted comments on the plan on June 8.
The court heard oral argument on June 10 with respect to the Commonwealth's proposed I/M plan. In an order dated June 16, 1981, the court approved the Commonwealth's I/M plan, along with certain amendments which had been suggested by Delaware Valley's comments. In the order the court extended the deadline for implementation of the I/M program from May 1, 1981 to May 1, 1982, because the latter date was the earliest date by which the Commonwealth could complete its regulatory process and provide for the production of a sufficient number of emission analyzers to implement the I/M program. The court also modified the consent decree to require monthly state audits of emissions inspections stations, establishment of two official "referee" stations to handle consumer complaints, and certification of at least 3,000 inspection stations by May 1, 1982. Id. at 533. A motion by the Commonwealth for reconsideration of the June 16 order was denied on July 14, 1981. Id. at 714.*fn5
The authority of the district court to modify or refuse to modify the consent decree is defined in the decree itself. Paragraph 13 of the decree empowers the court, upon application by any party, to enter "such further orders and directions as may be necessary or appropriate for carrying out" the decree, or to modify or terminate any of the decree's provisions "upon a showing of changed circumstances and good cause."*fn6 This provision of the decree is merely declaratory of a district court's inherent power to modify a consent decree, even over the objection of one of the parties. Jordan v. School Dist., 548 F.2d 117 (3d Cir. 1977). As Justice Cardozo wrote in United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S. Ct. 460, 462-463, 76 L. Ed. 999 (1932):
We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions though it was entered by consent.... Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.... The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative.... The result is all one whether the decree has been entered after litigation or by consent.... We reject the argument ... that a decree entered upon consent is to be treated as a contract and not as a judicial act.... (I)n truth what was then adjudged was not a contract as to any one. The consent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be.
(Citations omitted.) Accord, System Fed'n No. 91, Ry. Employes' Dep't, AFL-CIO v. Wright, 364 U.S. 642, 646-47, 81 S. Ct. 368, 370-371, 5 L. Ed. 2d 349 ...