On Appeal From the United States District Court for the District of New Jersey, D.C. Civil No. 87-288.
Becker, Hutchinson and Scirica, Circuit Judges.
The American Lung Association and other clean air advocacy groups brought this "citizens" suit in the district court for the District of New Jersey to compel New Jersey to promulgate and implement a system of ground-level ozone emission regulations Under the Clean Air Act, 42 U.S.C. §§ 7401-7642 (1982), the United States Environmental Protection Agency ("EPA") is given the authority to promulgate maximum levels for air-borne pollutants. Each state is required to adopt a State Implementation Plan ("SIP") that details what measures it will take to assure that the air in its region does not contain more than the federally determined acceptable levels of pollutants. See generally Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 780-81 (3d Cir. 1987) (describing structure created by Clean Air Act). American Lung Association and the other plaintiffs argued in the district court that New Jersey has obligated itself in its SIP to adopt and enforce several types of regulations to limit emissions of ozone, but has failed to do so.
In the first phase of a bifurcated proceeding, the district court granted plaintiffs' motion for summary judgment against the state defendants (New Jersey Governor Thomas Kean, the New Jersey Department of Environmental Protection ("NJDEP"), and Richard T. Dewling, the Department's Commissioner). EPA was also named as a defendant, but it sided with plaintiffs against the state defendants. The district court rejected New Jersey's contention that it had obligated itself only to investigate the regulatory programs outlined in the SIP, and declared instead that New Jersey was required to embark on these schemes of regulation. The court denied motions by several petroleum industry trade associations to intervene in this portion of the trial, although that industry would be heavily affected by the regulations.
In the second phase of the trial, which was dedicated to setting a schedule for promulgation and implementation of the regulations, the trade associations were allowed to intervene by consent of the parties.*fn1 The district court adopted the compliance schedule suggested by New Jersey, which had been approved by the plaintiffs and by EPA. It rejected a longer timetable proposed by the trade associations. The trade associations have brought this appeal seeking to challenge both the finding of liability against New Jersey and the validity of the compliance schedule adopted by the district court. They raise three contentions.
First, the trade associations challenge the jurisdiction of the district court to entertain a citizens' suit against the state in its regulatory capacity. We conclude, however, that the plain language of the Clean Air Act permits it. Second, one of the trade associations, (the American Petroleum Institute) seeks to challenge the district court's holding that New Jersey was required to adopt and enforce the regulatory programs. We conclude, however, that since the trade associations were denied intervention in the liability phase of the trial and did not appeal that determination, they may not challenge the determination of liability via this appeal.
Third, the trade associations seek to invalidate the scheduling order entered by the district court. They assert that the schedule was set with undue haste and they challenge the substance of the schedule. We conclude, however, that under the circumstances, the district court acted properly in allowing slightly more than a month for the submission of proposed timetables and that it acted within its discretion in adopting the timetable proposed by NJDEP for the promulgation and implementation of ozone emission regulations. We will therefore affirm.
The Clean Air Act of 1970, 42 U.S.C. §§ 7401-7642, was enacted in response to the growing threat that air pollution poses to human health. See id. § 7401. The statute creates a program of cooperative federalism for achieving cleaner air. The EPA is given the responsibility for setting National Ambient Air Quality Standards ("NAAQS"), which set maximum permissible levels for certain air-borne toxins. Id. § 7409. It is then up to each state to produce an implementation plan to reduce emissions from pollution sources within the state so that it complies with the NAAQS. Id. § 7410. These SIPs are promulgated by state agencies after notice and comment and must be approved by the EPA after it conducts its own notice and comment proceedings. Id. The SIPs are not merely advisory; once EPA approves a SIP the state is obligated to comply with it. Id. § 7413(a)(2). The Clean Air Act of 1970 provided that all states must be in compliance with the NAAQS within three years after the adoption of their SIPS or, in other words, by the mid-1970s. Id. § 7410(a)(2)(A).
By 1977, however, many states contained regions that were still not in compliance with the NAAQS. Congress amended the Clean Air Act to adjust to this fact. The 1977 amendments provided that states not yet in attainment must attain compliance with most NAAQS "as expeditiously as practicable, but . . . not later than December 31, 1982." 42 U.S.C. § 7502(a)(1). However, the amendments created a conditional exception to this deadline for two regulated toxins. States were given until December 31, 1987, to come into compliance with the ozone and carbon monoxide NAAQS, but only if the states met several conditions. In relevant part, the states first had to be able to establish that they could not have come into compliance earlier despite their adoption of all reasonably available measures. Id. § 7502(a)(2). Second, the states were required to "identify other measures necessary to provide for attainment of the applicable national ambient air quality standard" beyond the "reasonably available" measures and adopt them. Id. § 7502(b)(11)(C). Third, the SIPs had to contain "enforceable measures to assure attainment" of the NAAQS "as expeditiously as practicable but not later than December 31, 1987." Id. §§ 7502(c), 7502(a)(2).
This case involves the problem of ozone pollution in New Jersey. Ground-level ozone is a primary element of smog. Prolonged exposure to ozone in levels exceeding the NAAQS can cause breathing difficulties, chest tightness or pain, coughing, headaches or nausea in otherwise healthy people. And ozone emissions are particularly problematic for people with asthma and other respiratory ailments. See Affidavit of Fred M. Jacobs, J.A. at 242-47.
At issue is the revised SIP adopted by New Jersey and approved by EPA in 1980, in which New Jersey obligated itself to a program that would bring it into compliance with the ozone NAAQS by the end of 1987. Plaintiffs' suit, brought in January 1987, contended that New Jersey had failed to comply with its SIP by failing to promulgate and implement several types of pollutant regulations according to the timetable contained in the SIP. This appeal involves regulations concerning the installation of devices to limit the escape of ozone during automobile refueling ("Stage II controls")*fn2 and during the loading of barges carrying gasoline ("barge loading controls").
As noted above, the district court bifurcated the trial. The first phase was to determine whether the New Jersey SIP required the promulgation of regulations mandating the controls in question. The second phase was to set a schedule for compliance if such regulations were required. In April 1987, two groups of trade associations -- the American Petroleum Institute ("API"), and the National Association of Convenience Stores ("NACS") and similar associations -- moved to intervene as defendants for both phases. On July 24, 1987, their motions were denied, but API was allowed to file a brief amicus curiae. In the first phase of the proceedings, the district court granted plaintiffs' motion for summary judgment against the state defendants, holding that the SIP required NJDEP to promulgate regulations to implement Stage II controls and barge loading controls. The court rejected New Jersey's argument, and the argument of API as amicus, that the language of the SIP had obligated New Jersey to do no more than investigate these areas of regulation.
Prior to the second phase of the trial and pursuant to consent of all parties, the court permitted limited intervention by the trade associations "for the sole purpose of addressing the . . . remedies required as a result of the Court's [liability] opinion." Consent Order Granting API Leave to Intervene as Party Defendant at 2 (Oct. 5, 1987); Consent Order Granting NACS, et al., Leave to Intervene as Party Defendants at 2 (Oct. 29, 1987). The parties and the intervenors were given slightly more than a month from the time of the judgment of liability to submit proposed schedules for implementation of the required regulations. See Dist. Ct. Op. at 2 (Nov. 19, 1987) [hereinafter "Scheduling Opinion"].
NJDEP proposed a schedule which was endorsed by the plaintiffs and by EPA. The trade associations proposed a much longer timetable. The court adopted the schedule suggested by NJDEP. See Scheduling Opinion at 16-17. NJDEP has already promulgated the first stage II regulations, and the state defendants do not appeal from the district court judgment for liability or from the scheduling order. The trade associations, however, have brought this appeal seeking to overturn the district court's judgments with respect to both the conclusion that New Jersey had obligated itself to adopt Stage II and barge loading controls and the court-adopted timetable for ...