United
States
Court
of
Appeals
FOR
THE
DISTRICT
OF
COLUMBIA
CIRCUIT
Argued
September
3,
1998
Decided
March
2,
1999
No.
97­
1637
Environmental
Defense
Fund,

on
behalf
of
itself
and
its
members,

Petitioners
v.

Environmental
Protection
Agency
and
Carol
M.
Browner,

in
her
capacity
as
Administrator
of
the
United
States
Environmental
Protection
Agency,

Respondents
On
Petition
for
Review
of
an
Order
of
the
Environmental
Protection
Agency
Robert
E.
Yuhnke
argued
the
cause
and
filed
the
briefs
for
petitioner.

Thomas
A.
Lorenzen,
Attorney,
U.
S.
Department
of
Justice
argued
the
cause
for
respondents.
With
him
on
the
brief
were
Lois
J.
Schiffer,
Assistant
Attorney
General,
Karen
L.
Egbert,
Attorney,
U.
S.
Department
of
Justice,
Sara
Schneeberg
Attorney,
Environmental
Protection
Agency,
and
Peter
J.
Plocki,
Attorney,
U.
S.
Department
of
Transportation.

Before:
Wald,
Williams
and
Tatel,
Circuit
Judges.

Opinion
for
the
Court
filed
by
Circuit
Judge
Tatel.

Dissenting
opinion
filed
by
Circuit
Judge
Williams.

Tatel,
Circuit
Judge:
Petitioner
challenges
several
provisions
of
the
1997
Final
Rule
issued
by
the
Environmental
Protection
Agency
pursuant
to
the
1990
amendments
to
the
Clean
Air
Act.
That
statute
prohibits
a
metropolitan
planning
organization
from
approving
and
the
Department
of
Transportation
from
funding
any
transportation
project
unless
it
comes
from
a
regional
transportation
plan
and
program
that
conform
to
applicable
state­
level
air
quality
standards.
Because
the
challenged
"
conformity"
and
"
grandfather"
regulations
allow
both
local
approval
and
federal
funding
of
transportation
projects
that
satisfy
neither
this
requirement
nor
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the
single
exception
the
statute
permits,
we
hold
that
these
regulatory
provisions
violate
the
Clean
Air
Act.
In
addition,
we
remand
the
regulations
which
allow
conformity
to
be
based
on
emissions
budgets
unapproved
or
disapproved
by
EPA
for
further
proceedings
to
harmonize
those
regulations
with
the
statute's
general
conformity
requirements.
Finally,
we
hold
that
the
regulation
which
allows
conformity
to
be
based
on
revised
budgets
that
include
"
safety
margin"
emissions
violates
the
statute's
requirement
that
conformity
be
evaluated
against
approved
or
applicable
air
quality
standards

I
The
Clean
Air
Act
establishes
a
joint
state
and
federal
program
for
regulating
the
nation's
air
quality.
The
Act
requires
EPA
to
establish
National
Ambient
Air
Quality
Standards
("
NAAQS")
for
various
pollutants.
See
42
U.
S.
C.
s
7409
(
1994).
It
also
requires
each
state
to
adopt
a
State
Implementation
Plan
(
known
as
a
"
SIP")
that
"
provides
for
implementation,
maintenance,
and
enforcement
of
[
NAAQS]

in
each
air
quality
control
region
(
or
portion
thereof)
within
such
State."
Id.
s
7410(
a)(
1).
SIPs
must
include
"
enforceable
emission
limitations
and
other
control
measures,
means,
or
techniques
...
,
as
well
as
schedules
and
timetables
for
compliance,
as
may
be
necessary
or
appropriate"
to
meet
the
NAAQS.
Id.
s
7410(
a)(
2)(
A).
"[
A]
fter
reasonable
notice
and
public
hearings,"
each
state
must
submit
a
SIP
with
such
pollution
control
strategies
to
EPA.
Id.
s
7410(
a)(
1).
EPA
typically
approves
SIPs
pursuant
to
notice­
and­
comment
rulemaking

In
1977,
Congress
amended
the
Clean
Air
Act
to
ensure
that
transportation
planning
at
the
local
level
conforms
to
pollution
controls
contained
in
approved
SIPs.
To
accomplish
this,
the
1977
amendments
prohibit
federal
agencies
from
assisting,
approving,
or
supporting
"
any
[
transportation]
activity
which
does
not
conform
to
[
an
applicable
SIP]."
Pub.
L.
No.
95­
95,
tit.
I,
sec.
129(
b),
s
176(
c),
91
Stat.
745,
750
(
1977).

Because
Congress
"
offered
little
guidance"
on
the
1977
conformity
requirement,
and
because
federal
agencies
"
largely
...
ignored"
it,
Clean
Air
Conference
Report,
136
Cong.
Rec.
36,103,
36,105­
06
(
1990),
Congress
amended
the
Act
again
in
1990
to
expand
the
content
and
scope
of
this
requirement
See
Pub.
L.
No.
101­
549,
tit.
I,
sec.
101(
f),
110(
4),
s
176(
c),
104
Stat.
2409,
2470
(
1990)
(
codified
at
42
U.
S.
C.
s
7506(
c)).
The
focus
of
this
case,
the
1990
amendments
do
two
things.
First,
they
establish
general
criteria
for
determining
whether
a
transportation
activity
conforms
to
a
SIP:

(
1)
....
Conformity
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
achieving
expeditious
attainment
of
such
stan­
dards;
and
(
B)
that
such
activities
will
not­­

(
I)
cause
or
contribute
to
any
new
violation
of
any
standard
in
any
area;

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(
ii)
increase
the
frequency
or
severity
of
any
exist­
ing
violation
of
any
standard
in
any
area;
or
(
iii)
delay
timely
attainment
of
any
standard
or
any
required
interim
emission
reductions
or
other
mile­
stones
in
any
area.

42
U.
S.
C.
s
7506(
c)(
1).
Heads
of
federal
agencies
have
"
an
affirmative
responsibility"
to
assure
conformity
of
any
federally
assisted
or
approved
activity
to
an
applicable
SIP.
Id.

Second,
the
1990
amendments
integrate
the
attainment
and
maintenance
of
air
quality
standards
with
the
specific
transportation
planning
process
prescribed
by
the
Urban
Mass
Transportation
Act.
As
the
Clean
Air
Conference
Report
put
it,
"[
t]
he
purpose
of
the
new
'
conformity'
requirement
is
to
ensure
that
the
transportation
systems
choices
made
by
the
community
and
incorporated
into
the
regional
transportation
plan
required
by
[
federal
transportation
statutes]
are
consistent
with
achieving
the
allowable
emission
targets
for
each
pollutant
assigned
to
mobile
sources
in
the
SIP."
136
Cong.
Rec.
at
36,106
col.
2.
Under
the
Urban
Mass
Transportation
Act,
the
governor
of
each
state,
in
agreement
with
local
officials,
must
designate
a
metropolitan
planning
organization
(
known
as
an
"
MPO")
for
each
urban
area
with
more
than
50,000
people.
See
49
U.
S.
C.
A.
s
5303(
c)(
1).
The
MPO
plans
for
the
transportation
needs
of
that
area.
It
develops
a
longrange
transportation
plan
(
referred
to
in
the
statute
as
a
"
plan")
which
specifies
the
facilities,
services,
financing
techniques
and
management
policies
that
will
comprise
the
area's
transportation
system
over
a
20­
year
period,
see
id.
s
5303(
f),
as
well
as
a
short­
term
transportation
improvement
program
(
referred
to
in
the
statute
as
a
"
program"
and
in
the
regulations
as
a
"
TIP")
which
identifies
and
prioritizes
the
specific
transportation
projects
to
be
carried
out
over
the
next
three
years,
see
id.
s
5304(
b).
The
heart
of
the
Clean
Air
Act's
1990
conformity
requirements
consists
of
the
following
restrictions
on
approval
and
funding
of
transportation
plans,
programs,
and
projects:

(
2)
Any
transportation
plan
or
program
developed
pursuant
to
Title
23
or
the
Urban
Mass
Transportation
Act
shall
implement
the
transportation
provisions
of
any
applicable
implementation
plan
...
applicable
to
all
or
part
of
the
area
covered
by
such
transportation
plan
or
program.
No
Federal
agency
may
approve,
accept
or
fund
any
transportation
plan,
program
or
project
unless
such
plan,
program
or
project
has
been
found
to
conform
to
any
applicable
implementation
plan
in
effect
under
this
chapter.
In
particular­­

(
A)
no
transportation
plan
or
transportation
im­
provement
program
may
be
adopted
by
a
[
MPO],
or
be
found
to
be
in
conformity
by
a
[
MPO]
until
a
final
determination
has
been
made
that
emissions
expected
from
implementation
of
such
plans
and
programs
are
consistent
with
estimates
of
emissions
from
motor
vehicles
and
necessary
emissions
reductions
contained
in
the
applicable
implementation
plan
...;

....

(
C)
a
transportation
project
may
be
adopted
or
ap­

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proved
by
a
[
MPO]
or
any
recipient
of
funds
designat­
ed
under
Title
23
or
the
Urban
Mass
Transportation
Act,
or
found
in
conformity
by
a
[
MPO]
or
approved,
accepted,
or
funded
by
the
Department
of
Transporta­
tion
only
if
it
meets
either
the
requirements
of
subpar­
agraph
(
D)
or
the
following
requirements­­

(
I)
such
a
project
comes
from
a
conforming
plan
and
program;

....

(
D)
Any
project
not
referred
to
in
subparagraph
(
C)
shall
be
treated
as
conforming
to
the
applicable
imple­
mentation
plan
only
if
it
is
demonstrated
that
the
projected
emissions
from
such
project,
when
consid­
ered
together
with
emissions
projected
for
the
con­
forming
transportation
plans
and
programs
within
the
nonattainment
area,
do
not
cause
such
plans
and
pro­
grams
to
exceed
the
emission
reduction
projections
and
schedules
assigned
to
such
plans
and
programs
in
the
applicable
implementation
plan.

42
U.
S.
C.
s
7506(
c)(
2).
According
to
the
Agency,
these
provisions
apply
only
to
"
nonattainment"
areas
(
i.
e.,
areas
that
have
not
met
an
air
quality
standard
for
a
particular
pollutant
and
to
"
maintenance"
areas
(
i.
e.,
former
nonattainment
areas
that
have
met
the
appropriate
standard).
See
40
C.
F.
R.
ss
93.101,
93.102(
b)
(
1998).

In
addition
to
specifying
general
conformity
criteria
and
imposing
restrictions
on
regional
transportation
planning,
the
1990
amendments
establish
conformity
criteria
that
apply
to
transportation
plans,
programs,
and
projects
prior
to
Agency
approval
of
a
submitted
SIP.
See
42
U.
S.
C.
s
7506(
c)(
3).
The
amended
Act
also
authorizes
EPA
to
promulgate
criteria
and
procedures
for
determining
conformity,
provided
that
"
in
no
case
shall
[
conformity]
determinations
for
transportation
plans
and
programs
be
less
frequent
than
every
three
years."
Id.
s
7506(
c)(
4)(
B)(
ii).

EPA
first
issued
criteria
and
procedures
for
making
conformity
determinations
in
1993.
See
58
Fed.
Reg.
62,188
(
1993).
It
then
amended
those
procedures
in
a
series
of
rulemakings.
See
60
Fed.
Reg.
40,098
(
1995);
60
Fed.
Reg.
57,179
(
1995).
In
recent
years,
this
court
has
heard
two
challenges
to
these
amended
rules.
See
Sierra
Club
v.
EPA,
129
F.
3d
137
(
D.
C.
Cir.
1997)
(
invalidating
one­
year
exemption
from
statutory
conformity
requirements
for
transportation
activities
in
nonattainment
areas);
Environmental
Defense
Fund,
Inc.
v.
EPA,
82
F.
3d
451
(
D.
C.
Cir.
1996)
(
upholding
various
regulations
as
reasonable
interpretations
of
the
statute).

In
this
case,
petitioner
Environmental
Defense
Fund
argues
that
various
provisions
of
EPA's
most
recent
Final
Rule,
see
62
Fed.
Reg.
43,780
(
1997)
(
codified
at
40
C.
F.
R.
ss
93.100­
93.128),
violate
the
conformity
requirements
set
forth
in
the
1990
amendments
to
the
Clean
Air
Act.
Specifically
petitioner
contends:
(
1)
that
section
93.121(
a)(
1)
of
the
regulations
unlawfully
permits
local
authorities
to
approve
transportation
projects
in
the
absence
of
a
currently
conforming
transportation
plan
and
program;
(
2)
that
section
93.102(
c)(
1)
suffers
from
the
same
defect
with
respect
to
federal
funding
of
transportation
projects;
and
(
3)
that
sec­

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tions
93.118(
e)(
1),
93.120(
a)(
2),
and
93.124(
b)
unlawfully
require
or
permit
conformity
determinations
to
be
based
on
emissions
budgets
in
SIPs
that
EPA
has
disapproved
or
not
yet
approved.

Applying
Chevron's
two­
step
inquiry,
we
take
up
each
claim
in
turn.
We
begin
by
asking
"
whether
Congress
has
directly
spoken
to
the
precise
question
at
issue."
Chevron
U.
S.
A.
Inc.
v.
Natural
Resources
Defense
Council,
Inc.,
467
U.
S.
837,
842
(
1984).
If
so,
"
that
is
the
end
of
the
matter;
for
the
court,
as
well
as
the
agency,
must
give
effect
to
the
unambiguously
expressed
intent
of
Congress."
Id.
at
842­
43.
However,
if
"
the
statute
is
silent
or
ambiguous
with
respect
to
the
specific
issue,"
we
must
defer
to
the
Agency's
construction
of
the
statute
as
long
as
it
is
reasonable.
Id.
at
843.

II
We
start
with
EDF's
challenge
to
section
93.121(
a)(
1)
of
the
regulations,
which
provides
that
an
MPO
or
other
recipient
of
federal
funds
may
adopt
or
approve
a
regionally
significant
transportation
project
if
"[
t]
he
project
was
included
in
the
first
three
years
of
the
most
recently
conforming
transportation
plan
and
TIP
(
or
the
conformity
determination's
regional
emissions
analyses),
even
if
conformity
status
is
currently
lapsed."
40
C.
F.
R.
s
93.121(
a)(
1).
Conformity
status
of
a
transportation
plan
or
program
lapses
when
more
than
three
years
pass
without
a
new
conformity
determination
by
an
MPO
or
the
Department
of
Transportation.
See
42
U.
S.
C.
s
7506(
c)(
4);
40
C.
F.
R.
s
93.104(
b)(
3),
(
c)(
3).
Under
section
93.121(
a)(
1),
local
officials
may
approve
a
transportation
project
as
long
as
it
once
appeared
in
a
conforming
plan
and
program,
even
if
the
plan
and
program
no
longer
conform
at
the
time
of
project
approval.
By
authorizing
this
result,
petitioner
argues,
section
93.121(
a)(
1)
violates
the
Clean
Air
Act's
requirement
that
projects
"
come[
]
from
a
conforming
plan
and
program."
42
U.
S.
C.
s
7506(
c)(
2)(
C).
We
agree.

At
the
outset,
we
think
it
important
to
make
clear
that
this
dispute
over
the
legality
of
section
93.121(
a)(
1)
relates
only
to
approval
of
non­
federally
funded
projects.
The
Agency's
rule
makes
clear
that
local
transportation
projects
receiving
federal
funds
must
satisfy
a
more
stringent
conformity
requirement
than
section
93.121(
a)(
1).
Federally
funded
projects
may
not
proceed
unless
there
exists
"
a
currently
conforming
transportation
plan
and
currently
conforming
TIP
at
the
time
of
project
approval."
40
C.
F.
R.
s
93.114
(
emphasis
added).
In
other
words,
during
a
plan
or
program
conformity
lapse,
an
MPO
may
not
find
a
federally
funded
project
to
be
in
conformity,
and
therefore
that
project
may
not
go
forward.
The
question
here
is
whether
non­
federally
funded
projects­­
defined
as
"
projects
which
are
funded
or
approved
by
a
recipient
of
federal
funds
...
but
which
do
not
rely
at
all
on
any
[
federal]
funding
or
approvals,"
62
Fed.
Reg.
at
43,788­­
may
attain
conformity
status
in
the
absence
of
a
currently
conforming
plan
and
program.

We
begin
with
the
text
of
the
Clean
Air
Act.
Under
section
7506(
c)(
2)(
C),
an
MPO
may
find
a
local
transportation
project
to
conform
with
an
applicable
SIP
only
if
the
project
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meets
one
of
two
requirements:
Either
it
must
"
come[
]
from
a
conforming
plan
and
program,"
id.
s
7506(
c)(
2)(
C)(
i),
or
its
"
projected
emissions...,
when
considered
together
with
emissions
projected
for
the
conforming
transportation
plans
and
programs
within
the
nonattainment
area,
[
must]
not
cause
such
plans
and
programs
to
exceed
the
emission
reduction
projections
and
schedules
assigned
to
such
plans
and
programs
in
the
applicable
[
SIP],"
id.
s
7506(
c)(
2)(
D).
Claiming
that
the
requirement
that
a
project
"
come
from
a
conforming
plan
and
program"
is
ambiguous,
EPA
insists
that
it
has
reasonably
construed
this
requirement
to
permit
project
approval
during
a
conformity
lapse,
as
long
as
the
project
comes
from
the
first
three
years
of
a
once­
conforming
plan
and
program.
This
approach,
EPA
argues,
strikes
the
proper
balance
between
protecting
air
quality
and
avoiding
disruption
to
the
transportation
planning
process.
According
to
petitioner,
the
statutory
text
leaves
no
ambiguity:
A
project
that
"
comes
from
a
conforming
plan
and
program"
means
a
project
that
comes
from
a
currently
conforming
plan
and
program.
Therefore,
EDF
argues,
the
statute
prohibits
approval
of
any
projects,
federally
funded
or
not,
during
a
conformity
lapse.

Giving
these
words
their
ordinary
meaning,
we
interpret
the
phrase
"
comes
from
a
conforming
plan
and
program"­­
a
phrase
entirely
in
the
present
tense­­
to
refer
to
projects
that
come
from
a
currently
conforming
plan
and
program.
But
even
were
it
possible
to
read
the
phrase,
as
EPA
and
our
dissenting
colleague
do,
to
refer
to
projects
that
come
from
a
previously
conforming
plan
and
program,
we
think
this
interpretation
is
foreclosed
by
Congress's
use
of
the
terms
"
conforming
plan
and
program"
in
section
7506(
c)(
2)(
D),
by
the
general
conformity
criteria
of
section
7506(
c)(
1),
and
by
the
legislative
history
of
the
conformity
requirements.

Section
7506(
c)(
2)(
D)
states
that
a
project
not
included
in
a
conforming
plan
and
program
may
be
found
to
conform
only
if
its
projected
emissions
"
when
considered
together
with
emissions
projected
for
the
conforming
transportation
plans
and
programs
within
the
nonattainment
area,"
do
not
exceed
the
SIP
emissions
budget.
42
U.
S.
C.
s
7506(
c)(
2)(
D).
This
provision
enables
a
project
to
attain
conformity
status
"
only
if
the
regional
plans
and
programs
are
in
conformity
at
the
time
the
project
is
reviewed."
Clean
Air
Conference
Report,
136
Cong.
Rec.
at
36,108
col.
1.
Indeed,
in
its
1996
notice
of
proposed
rulemaking,
which
led
to
the
Final
Rule
challenged
here,
EPA
acknowledged
that
[
t]
he
option
provided
in
section
[
7506](
c)(
2)(
D)
for
new
projects
that
were
not
previously
included
in
a
transpor­
tation
plan/
TIP
or
supporting
regional
emissions
analysis
to
demonstrate
conformity
cannot
apply
during
a
trans­
portation
plan/
TIP
conformity
lapse,
because
it
requires
a
demonstration
that
"
conforming
transportation
plans
and
TIPs"
would
still
conform
when
the
emissions
of
the
new
project
are
considered.
Without
a
conforming
transportation
plan
and
TIP
in
place,
this
cannot
be
demonstrated.

61
Fed.
Reg.
36,112,
36,120
col.
2
(
1996).
We
thus
have
no
doubt
that
the
word
"
conforming"
in
section
7506(
c)(
2)(
D)
means
presently
conforming.
Since
section
7506(
c)(
2)(
D)
pro­

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vides
an
alternative
means
of
demonstrating
project
conformity
when
a
project
does
not
"
come
from
a
conforming
plan
and
program,"
it
would
be
quite
odd
to
read
the
word
"
conforming
in
section
7506(
c)(
2)(
C)
to
mean
something
different
from
what
it
means
in
section
7506(
c)(
2)(
D).

Moreover,
were
we
to
read
the
word
"
conforming"
the
way
EPA
suggests,
then
there
would
be
no
assurance
that
projects
approved
under
section
7506(
c)(
2)(
C)
would
help
eliminate
reduce,
or
prevent
violations
of
national
ambient
air
quality
standards,
as
required
by
section
7506(
c)(
1).
According
to
that
provision,
a
"
conforming"
transportation
project
is
one
that
will
contribute
to
"
eliminating
or
reducing
the
severity
and
number
of
violations
of
the
[
NAAQS]
and
achieving
expeditious
attainment
of
such
standards,"
42
U.
S.
C.
s
7506(
c)(
1)(
A),
and
that
"
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,"
id.
s
7506(
c)(
1)(
B).
Though
doubting
the
applicability
of
section
7506(
c)(
1)
to
projects
approved
under
section
7506(
c)(
2),
the
dissent
nevertheless
concedes
that
section
7506(
c)(
2)(
A)
expressly
incorporates
the
requirements
of
section
7506(
c)(
1)(
B)
and
makes
them
applicable
to
projects
approved
under
section
7506(
c)(
2).
See
Dissenting
Opinion
("
Dissenting
Op.")
at
7.
Absent
a
currently
conforming
plan
and
program,
there
is
no
certainty
that
a
regionally
significant
transportation
project
will
satisfy
any
of
the
section
7506(
c)(
1)(
B)
conformity
criteria.
EPA's
interpretation
of
section
7506(
c)(
2)(
C)
thus
eviscerates
the
requirements
of
section
7506(
c)(
1)(
B)
and
therefore
also
the
requirements
of
section
7506(
c)(
2)(
A),
creating
an
untenable
inconsistency
not
only
between
section
7506(
c)(
1)
and
section
7506(
c)(
2),
but
also
within
section
7506(
c)(
2)
itself.

Our
dissenting
colleague
accuses
us
of
"
embrac[
ing]
an
argument"
raised
by
petitioner
"
in
two
sentences
of
its
'
Summary
of
Argument,'
but
not
at
all
thereafter."
Dissenting
Op.
at
4.
With
all
due
respect,
we
think
the
dissent
unfairly
characterizes
petitioner's
brief.
It
is
true
that
petitioner
first
sets
forth
this
argument
in
the
"
Summary
of
Argument":

The
rule
...
undermines
Congress'
decision
to
ensure
that
long­
term
investment
of
resources
in
regional
trans­
portation
systems
contribute
to
'
eliminating
or
reducing
the
severity
and
number
of
[
NAAQS
violations]'
(
re­
quired
by
s
176(
c)(
1)(
A))
by
requiring
re­
assessment
of
the
conformity
of
the
planned
regional
transportation
system
every
three­
years
[
sic].
42
U.
S.
C.
s
7506(
c)(
4)(
B)(
ii).
By
allowing
projects
from
a
plan
that
no
longer
meets
regional
emission
budgets
to
be
ap­
proved,
the
rule
allows
elements
of
the
non­
conforming
plan
to
be
implemented
which
can
interfere
with
prog­
ress
toward
attaining
the
NAAQS.

EDF
Br.
at
13
(
alteration
in
original).
But
far
from
failing
to
mention
this
argument
later
in
its
brief,
petitioner
devotes
three
pages
of
its
"
Argument"
section
to
developing
the
claim.
See
id.
at
23­
25.
EDF
opens
this
discussion
by
citing
section
7506(
c)(
4)(
B)(
ii)
for
the
proposition
that
"
conformity
determinations
for
a
plan
and/
or
program
expire
at
least
every
three
years
by
operation
of
law."
Id.
at
23.
It
then
argues
that
"[
t]
he
three­
year
limit
on
transportation
plans
and
TIPs
plays
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an
important
role
by
assuring
that
plans
and
TIPs
continue
to
reflect
the
latest
emission
targets
for
a
region,"
specifically
mentioning
emission
reduction
targets
related
to
statutorilyprescribed
ozone
and
carbon
monoxide
attainment
goals.
Id.
at
24.
"
Without
the
obligation
to
renew
conformity
findings
every
3
years,"
EDF
concludes,
"
regions
could
continue
implementing
transportation
systems
designed
to
meet
older
emission
targets
no
longer
adequate
to
attain
the
NAAQS."
Id.
In
addition
to
paraphrasing
the
claim
first
stated
in
the
"
Summary
of
Argument,"
which
explicitly
invokes
section
7506(
c)(
1),
this
last
sentence
plainly
manifests
petitioner's
belief
that
EPA's
rule
fails
to
ensure
that
transportation
plans,
programs,
and
projects
will
help
"
achieve
expeditious
attainment
of
[
NAAQS]"
and
will
not
"
delay
timely
attainment
of
any
[
NAAQS],"
as
section
7506(
c)(
1)
requires.
42
U.
S.
C.
s
7506(
c)(
1)(
A),
(
c)(
1)(
B)(
iii).
We
think
that
petitioner
has
adequately
challenged
EPA's
regulation
under
section
7506(
c)(
1).

The
legislative
history
of
the
1990
conformity
requirements
provides
one
final
reason
why
we
think
the
phrase
"
conforming
plan
and
program"
refers
to
currently
conforming
plans
and
programs.
Congress
imposed
new
conformity
requirements
in
order
to
integrate
transportation
planning
at
the
local
level
with
attainment
and
maintenance
of
air
quality
standards
at
the
state
level.
See
Clean
Air
Conference
Report,
136
Cong.
Rec.
at
13,106
col.
1
(
noting
that
the
statute
"
will
require
transportation
planning
agencies
to
view
their
task
as
the
development
of
a
transportation
system
that
meets
...
both
mobility
needs
and
air
quality
objectives").
By
requiring
plans
and
programs
to
conform
to
applicable
SIPs
at
the
time
of
project
approval,
Congress
sought
to
ensure
that
"
transportation
plans
and
programs
[
would]
serve
as
part
of
the
pollution
control
strategy
for
the
metropolitan
area."
Id.
To
be
sure,
plans
and
programs
could
also
serve
this
pollution
control
function,
as
EPA
explains,
by
"
account
ing]
for
and
offset[
ting]
if
necessary
the
emissions
of
any
non­
federal
projects
that
are
implemented
during
a
conformity
lapse."
62
Fed.
Reg.
at
43,790
col.
1.
But
that
approach
would
invite
local
decision­
makers
to
approve
transportation
projects
while
deferring
development
of
pollution
control
strategies
during
conformity
lapses,
thereby
subverting
Congress's
intent
that
the
two
processes­­
transportation
planning
and
pollution
control­­
occur
simultaneously.
See
136
Cong.
Rec.
at
36,107
col.
2
(
regional
planning
process
should
identify
"
the
comprehensive
transportation
system
for
a
metropolitan
area"
in
the
context
of
a
"
comprehensive
consideration
of
alternatives
...
and
careful
analysis
of
options
that
can
contribute
toward
achieving
the
air
quality
objectives
of
the
Clean
Air
Act").

The
Conference
Report
also
describes
section
7506(
c)(
2)(
D)
as
an
"
exception"­­
indeed,
it
is
the
only
exception­­
to
the
general
rule
of
section
7506(
c)(
2)(
C).
Id.
at
36,108
col.
1.
Under
section
7506(
c)(
2)(
D),
an
excluded
project
may
go
forward
only
if
its
expected
emissions,
together
with
the
expected
emissions
from
currently
conforming
plans
and
programs,
do
not
exceed
the
emissions
ceilings
in
the
applicable
SIP.
As
we
indicated
earlier,
both
Congress
and
EPA
interpret
the
word
"
conforming"
in
this
provision
to
mean
currently
conforming.
See
supra
at
9.
Section
7506(
c)(
2)(
D)

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thus
shows
that
Congress
wanted
no
transportation
projects
to
proceed
without
assurance
that
they
would
not
undermine
attainment
or
maintenance
of
current
air
quality
standards.
Directly
contravening
this
mandate,
the
Agency's
rule
allows
local
officials
to
approve
transportation
projects
included
in
plans
and
programs
that
previously
conformed
but
presently
do
not.
See
40
C.
F.
R.
s
93.121(
a)(
1).
Because
the
conformity
status
of
such
projects
bears
no
relation
to
current
air
quality
attainment
or
maintenance
goals,
their
approval
carries
no
guarantee
that
their
emissions
will
neither
violate
current
standards
nor
contribute
to
existing
violations.
Indeed
in
the
preamble
to
the
1997
Final
Rule,
EPA
admits­­
without
qualification
and
contrary
to
its
position
in
this
case­­
that
"
projects
cannot
be
approved
if
the
plan
and
TIP
have
lapsed."
62
Fed.
Reg.
at
43,797
cols.
1­
2.

EPA
offers
two
additional
justifications
for
its
interpretation
of
section
7506(
c)(
2)(
C).
Neither
survives
scrutiny.
First,
the
Agency
points
out
that
under
a
regulation
effective
since
1995,
a
certain
category
of
transportation
projects
called
transportation
control
measures
("
TCMs")
may
proceed
even
in
the
absence
of
a
currently
conforming
plan
and
program.
See
40
C.
F.
R.
s
93.114(
b).
According
to
the
Agency,
this
exemption
shows
that
section
7506(
c)(
2)(
C)
of
the
statute
requires
no
currently
conforming
plan
and
program
at
the
time
of
project
approval.
But
we
see
no
reason
to
extend
the
exemption
for
TCMs
to
ordinary
transportation
projects,
since
the
former
reduce
pollution,
see
id.
s
93.101,
while
the
latter
add
to
it.
TCMs
are
"
specifically
identified
and
committed
to
in
the
applicable
implementation
plan,"
id.,
and
exempted
from
the
requirements
of
section
7506(
c)(
2)(
C)
because
as
the
Agency
explained
in
the
preamble
to
the
1995
rule,
"[
b]
y
definition,
a
TCM
in
an
approved
SIP
conforms
to
the
SIP
because
it
is
contained
in
the
SIP."
60
Fed.
Reg.
at
57,180
col.
2.
This
rationale
has
no
applicability
to
non­
TCM
projects
because
such
projects
never
appear
in
SIPs.
See
id.
at
57,180
col.
3.

Second,
the
Agency
argues
that
although
the
statute
requires
plan
and
program
conformity
determinations
at
least
once
every
three
years,
see
42
U.
S.
C.
7506(
c)(
4)(
B)(
ii),
the
statute
contains
no
such
requirement
for
project
conformity
determinations.
Inferring
from
this
that
Congress
intended
project
conformity
to
be
determined
not
more
than
once,
EPA
maintains
that
a
project
included
in
a
previously
conforming
plan
and
program
retains
its
conformity
status,
even
if
conformity
of
that
plan
and
program
eventually
lapses.
We
disagree.
Although
the
statute
suggests
that
Congress
did
not
intend
project
conformity
determinations
to
occur
every
three
years,
it
does
not
follow
that
Congress
intended
project
conformity
determinations
to
occur
only
once.
Based
on
our
analysis
above,
we
read
the
statute
to
require
non­
federally
funded
projects
to
follow
the
three­
year
conformity
determination
schedule
applicable
to
transportation
plans
and
programs
up
to
the
point
of
MPO
approval.
After
MPO
approval
non­
federally
funded
projects
need
undergo
no
further
conformity
determinations.

In
sum,
the
language
and
history
of
the
statute's
conformity
requirements
show
that
Congress
intended
transportation
planning
and
air
quality
management
to
proceed
in
lock
step.
By
allowing
local
approval
of
transportation
projects
in
the
absence
of
currently
conforming
plans
and
programs,
the
Agency's
regulation
undermines
section
7506(
c)(
2)(
C)'
s
criteria
for
demonstrating
conformity
of
regionally
significant
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transportation
projects
to
state­
level
air
quality
standards.
Finding
clear
congressional
intent
and
thus
no
need
to
proceed
to
Chevron's
second
step,
we
hold
that
section
93.121(
a)(
1)
of
the
regulations
violates
the
Clean
Air
Act.

III
Next,
petitioner
challenges
section
93.102(
c)(
1)
of
the
regulations
which
provides
that
[
p]
rojects
subject
to
this
subpart
for
which
the
NEPA
process
and
a
conformity
determination
have
been
com­

pleted
by
DOT
may
proceed
toward
implementation
without
further
conformity
determinations
unless
more
than
three
years
have
elapsed
since
the
most
recent
major
step
(
NEPA
process
completion;
start
of
final
design;
acquisition
of
a
significant
portion
of
the
right­
of­
way;
or
approval
of
the
plans,
specifications
and
esti­
mates)
occurred.

40
C.
F.
R.
s
93.102(
c)(
1).
Known
as
the
"
grandfather"
rule,
this
section
reflects
the
Agency's
view
that
"
there
should
only
be
one
point
in
the
transportation
planning
process
at
which
a
project­
level
conformity
determination
is
necessary."
62
Fed.
Reg.
at
43,783
col.
2.
According
to
petitioner,
this
regulation,
like
the
one
discussed
above,
violates
section
7506(
c)(
2)(
C)
of
the
statute
because
it
allows
transportation
projects
to
receive
federal
funding
in
the
absence
of
a
currently
conforming
plan
and
program.
Again,
we
agree.

To
understand
how
the
"
grandfather"
rule
works,
consider
the
following
hypothetical:
In
1993,
an
MPO
approves
and
adopts
a
regional
highway
project­­
for
example,
an
urban
beltway.
At
the
time,
the
beltway
is
included
in
both
a
conforming
plan
and
a
conforming
program.
Three
years
later,
in
1996,
the
conformity
status
of
the
plan
and
program
lapses.
In
1997,
the
MPO
acquires
a
significant
portion
of
the
right­
of­
way
for
the
beltway.
Today,
ready
to
start
building,
the
MPO
seeks
funding
from
the
Department
of
Transportation.
EPA's
"
grandfather"
rule
would
allow
DOT
to
fund
the
beltway,
since
a
"
major
step"­­
acquisition
of
right­
of­
way­­
occurred
within
the
past
three
years.
But
section
7506(
c)(
2)(
C)'
s
conformity
requirement
expressly
prohibits
DOT
from
"
approv[
ing],
accept[
ing],
or
fund[
ing]"
the
beltway
unless
it
"
comes
from
a
conforming
plan
and
program
This
means
that
no
transportation
project
may
receive
federal
funds
in
the
absence
of
a
currently
conforming
plan
and
program.
See
supra
Part
II.
Therefore,
to
the
extent
that
section
93.102(
a)(
1)
of
the
regulations
allows
projects
to
receive
federal
funds
during
plan
and
program
conformity
lapses,
it
violates
the
Clean
Air
Act.

Defending
its
"
grandfather"
rule,
EPA
cites
Environmental
Defense
Fund,
Inc.
v.
EPA,
supra.
But
that
case
sustained
the
"
grandfather"
rule
only
as
a
transition
measure
"
to
avoid
immediate
'
retroactive'
implementation
of
the
new
[
1990]
conformity
requirement
which
would
impose
a
substantial
and
unforeseen
burden
on
federal
projects
that
had
already
satisfied
existing
federal
requirements
[
i.
e.,
NEPA
review]."
82
F.
3d
at
456.
Nothing
in
that
decision
supports
what
the
Agency
has
done
here­­
forever
exempting
a
project
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from
further
conformity
determinations
where
the
project's
most
recent
conformity
determination
occurred
more
than
three
years
ago
and
where
a
"
major
step"
occurred
within
the
past
three
years.

While
invalidating
section
93.102(
a)(
1)
with
respect
to
federally
funded
projects,
we
note
that
the
statute
does
not
preclude
the
"
grandfather"
clause
from
applying
to
nonfederally
funded
projects.
Although
section
7506(
c)(
2)(
C)
of
the
statute
prohibits
MPO
or
DOT
approval
of
non­
federally
funded
projects
during
a
plan
and
program
conformity
lapse,
it
nowhere
prohibits
implementation
of
such
projects
as
long
as
their
approval
occurred
prior
to
the
conformity
lapse.

IV
We
turn
finally
to
petitioner's
challenge
to
those
sections
of
the
regulations
that
permit
or
require
plan,
program,
and
project
conformity
to
be
based
on
motor
vehicle
emissions
budgets
in
SIP
revisions
that
a
state
has
submitted
to
EPA,
but
that
EPA
has
not
yet
approved
or
has
disapproved.
See
40
C.
F.
R.
ss
93.118(
e)(
1),
93.120(
a)(
2),
93.124(
b).
Under
these
regulations,
if
EPA
disapproves
a
submitted
SIP
revision
without
a
"
protective
finding"­­
i.
e.,
a
determination
that
the
submission
"
contains
adopted
control
measures
or
written
commitments
to
adopt
enforceable
control
measures
that
fully
satisfy
the
[
relevant
statutory]
emissions
reductions
requirements
id.
s
93.101­­
then
"[
d]
uring
the
first
120
days
following
[
such]
disapproval...,
transportation
plan,
TIP,
and
project
conformity
determinations
shall
be
made
using
the
motor
vehicle
emissions
budget(
s)
in
the
disapproved
control
strategy
implementation
plan."
Id.
s
93.120(
a)(
2).
Emissions
budgets
contained
in
a
submitted
SIP
revision
also
guide
conformity
determinations
when
EPA
makes
no
finding
within
45
days
of
submission
regarding
the
adequacy
of
the
budgets.
See
id.
s
93.118(
e)(
1);
see
also
id.
s
93.124(
b)
(
allowing
conformity
to
be
based
on
submitted
but
not­
yet­
approved
SIP
revisions).
Submitted
budgets,
however,
do
not
supersede
emissions
budgets
in
an
approved
SIP
for
the
years
covered
by
the
SIP.
See
id.
s
93.118(
e)(
1).

Conceding
that
the
Clean
Air
Act
generally
requires
conformity
to
be
evaluated
against
approved
SIPs,
the
Agency
argues
that
these
regulations
represent
reasonable
responses
to
statutory
silence
as
to
how
conformity
should
be
determined
when
no
approved
SIP
exists
or
when
the
approved
SIP
contains
no
adequate
motor
vehicle
emissions
budget.
We
disagree.
Although
the
statute
nowhere
explicitly
dictates
how
conformity
should
be
determined
under
the
circumstances
EPA
describes,
any
attempt
by
the
Agency
to
fill
these
gaps
must
satisfy
section
7506(
c)(
1)(
B)'
s
generally
applicable
conformity
requirements.
Where
EPA
disapproves
a
SIP
revision
without
a
protective
finding,
i.
e.,
without
determining
that
it
contains
adequate
measures
to
reduce
emissions
to
statutorily
required
levels,
see
40
C.
F.
R.
s
93.120(
a)(
2),
or
where
EPA
fails
to
determine
the
adequacy
of
motor
vehicle
emissions
budgets
in
a
SIP
revision
within
45
days
of
submission,
see
id.
s
93.118(
e)(
1),
there
is
no
reason
to
believe
that
transportation
plans
and
programs
conforming
to
the
submitted
budgets
"
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
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standard...."
42
U.
S.
C.
s
7506(
c)(
1)(
B).
Indeed,
nothing
in
the
regulations
requires
MPOs
to
show
that
an
area's
projected
emissions
would
be
lower
if
plans
and
programs
conforming
to
a
submitted
budget
were
implemented
than
if
they
were
not.
See
62
Fed.
Reg.
at
43,781
col.
2
(
noting
that
submitted
budgets
replaced
"
build/
no­
build
test"
as
measure
of
conformity
under
Final
Rule).
Even
if
it
were
true
that
section
93.118(
e)
gives
states
an
incentive
to
file
emissions
budgets
conforming
to
law,
see
Dissenting
Op.
at
10,
the
regulation
would
still
violate
the
statute
by
allowing
conformity
determinations
to
take
effect
where
federal
agencies
and
MPOs
have
not
discharged
their
"
affirmative
responsibility"
to
provide
an
"
assurance
of
conformity."
42
U.
S.
C.
s
7506(
c)(
1).
To
be
sure,
section
93.118(
e)(
6)
of
the
regulations
provides
that
"
the
MPO
and
DOT's
conformity
determinations
[
based
on
unapproved
or
disapproved
SIPs]
will
be
deemed
to
be
a
statement
that
the
MPO
and
DOT
are
not
aware
of
any
information
that
would
indicate
that
emissions
consistent
with
the
motor
vehicle
emissions
budget"
would
violate
section
7506(
c)(
1)(
B)'
s
conformity
criteria.
But
how
can
an
MPO
or
DOT
satisfy
its
"
affirmative
responsibility"
to
provide
an
"
assurance
of
conformity"
through
a
"
deemed"
statement
indicating
mere
ignorance
of
non­
conformity?
For
these
reasons,
we
grant
petitioner's
request
that
we
remand
sections
93.118(
e)(
1)
and
93.120(
a)(
2)
to
EPA
for
further
rulemaking
to
harmonize
these
regulations
with
section
7506(
c)(
1)'
s
conformity
requirements.

Section
93.124(
b)
is
also
inconsistent
with
the
Clean
Air
Act,
but
for
a
different
reason.
That
provision
reads:

If
an
applicable
implementation
plan
submitted
before
November
24,
1993,
demonstrates
that
emissions
from
all
sources
will
be
less
than
the
total
emissions
that
would
be
consistent
with
attainment
and
quantifies
that
"
safety
margin,"
the
State
may
submit
an
implementation
plan
revision
which
assigns
some
or
all
of
this
safety
margin
to
highway
and
transit
mobile
sources
for
the
purposes
of
conformity.
Such
[
a
SIP]
revision
...
may
be
used
for
the
purposes
of
transportation
conformity
before
it
is
approved
by
EPA.

Id.
s
93.124(
b).
Unlike
sections
93.118(
e)(
1)
and
93.120(
a)(
2),
which
apply
when
there
is
no
applicable
SIP
or
no
SIP
with
an
applicable
emissions
budget,
section
93.124(
b)
applies
when
there
is
an
applicable
SIP­­
i.
e.,
it
does
not
purport
to
fill
a
statutory
gap.
While
it
may
be
true
that
plans
and
programs
conforming
to
a
SIP
revision
under
section
93.124(
b)
"
will
not
cause,
worsen,
or
prolong
violations
of
air
quality
standards,"
Dissenting
Op.
at
13,
the
statute
nevertheless
requires
conformity
determinations
to
be
based
on
a
SIP
"
approved
or
promulgated
under
section
7410
of
this
title"
where
such
a
SIP
exists.
42
U.
S.
C.
s
7506(
c)(
1);
see
also
id.
s
7506(
c)(
2)
(
requiring
transportation
plans,
programs,
and
projects
"
to
conform
to
any
applicable
implementation
plan
in
effect
under
this
chapter").
Indeed,
EPA
itself
has
said
that
it
"
does
not
believe
that
it
is
legal
to
allow
a
submitted
SIP
to
supersede
an
approved
SIP
for
years
addressed
by
the
approved
SIP."
62
Fed.
Reg.
at
43,783
col.
3;
see
also
40
C.
F.
R.
s
93.118(
e)(
1).
Because
section
93.124(
b)
would
allow
a
submitted
but
unapproved
SIP
revision
to
supersede
an
approved
SIP,
it
violates
the
Clean
Air
Act.

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V
Our
dissenting
colleague
charges
that
our
conclusions
today
frustrate
EPA's
goal
of
allowing
greater
flexibility
in
the
conformity
determination
process.
See
Dissenting
Op.
at
1.
Whatever
the
Agency's
policy
goals,
our
job
is
to
interpret
the
statute.
Here,
the
statute
imposes
an
elaborate
array
of
requirements
that,
according
to
the
dissent,
amount
to
"
a
congressional
effort
to
micromanage
local
transportation
planning."
Id.
at
1.
If
this
legislative
scheme
is
too
onerous,
it
is
up
to
Congress
to
provide
relief,
not
this
court.

We
grant
EDF's
petition
for
review
and
hold
that
sections
93.121(
a)(
1)
and
93.102(
c)(
1)
of
EPA's
regulations
are
unlawful
because
they
depart
from
the
criteria
for
demonstrating
project
conformity
established
in
section
7506(
c)(
2)(
C)
of
the
Clean
Air
Act.
In
addition,
we
remand
sections
93.118(
e)(
1)
and
93.120(
a)(
2)
of
the
regulations
for
the
Agency
to
align
these
regulations
with
the
general
conformity
criteria
of
section
7506(
c)(
1)(
B).
Finally,
we
hold
that
section
93.124(
b)
of
the
regulations
violates
section
7506(
c)(
1)­(
2)
of
the
Act
by
allowing
a
submitted
SIP
revision
to
supersede
an
approved
or
applicable
SIP.

So
ordered.

Williams,
Circuit
Judge,
dissenting:
The
1990
conformity
amendments
to
the
Clean
Air
Act
("
CAA")
were
intended
to
harmonize
the
transportation
planning
process
for
polluted
metropolitan
areas
with
air
quality
plans
(
technically,
"
state
implementation
plans"
or
"
SIPs")
established
by
state
authorities
In
particular,
the
conformity
amendments
prohibit
certain
transportation
activities
from
going
forward
unless
relevant
entities
have
determined
that
the
activities
are
"
in
conformity"­­
that
is,
that
they
meet
certain
criteria
relating
to
air
quality.
The
Act's
conformity
requirements
are
astonishingly
confusing,
and
could
if
interpreted
as
stringently
as
possible
seriously
disrupt
state
and
local
transportation
planning
That
would
"
frustrate
the
process
of
state
and
federal
cooperation
and
the
integrated
planning
that
section
176(
c)(
1)
was
created
to
foster."
EDF
v.
EPA,
82
F.
3d
451,
468
(
D.
C.
Cir.
1996).
The
EPA
attempted
in
this
rule
to
reduce
disruption
and
make
the
conformity
determination
process
"
more
logical
and
feasible"
62
Fed.
Reg.
43,780,
43,781
(
1997),
by
allowing
greater
flexibility
than
it
had
permitted
in
its
1993
conformity
regulations.
See
62
Fed.
Reg.
at
43,780.
In
accepting
all
the
petitioners'
challenges
to
the
rule,
the
majority
undoes
much
of
what
EPA
intended
to
accomplish.
Although
I
believe
there
are
three
respects
in
which
the
EPA
has
not
adequately
explained
itself,
I
cannot
find
it
guilty
of
the
thoroughgoing
misunderstanding
of
the
statute
that
leads
the
majority
to
find
for
EDF
on
every
issue.
Accordingly,
I
dissent.

Of
course
when
a
congressional
effort
to
micromanage
local
transportation
planning
in
as
much
detail
as
this
statute
is
followed
by
a
judicial
decision
that
the
agency
must
put
states
and
localities
in
an
even
tighter
straightjacket,
one
may
feel
that
Congress
asked
for
it.
But
one
cannot
say
the
same
for
the
hapless
citizens
who
must
live
with
the
results.

I.
Local
approval
of
nonfederal
projects
not
from
currently
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conforming
plan
and
program
The
first
regulation
the
majority
strikes
down
is
40
CFR
s
93.121(
a)(
1).
It
allows
certain
nonfederal
entities
to
adopt
or
approve
projects
contained
in
the
first
three
years
of
a
transportation
plan
and
program
(
i.
e.,
designated
for
implementation
within
those
years)
that
was
once
in
conformity,
even
if
conformity
has
since
lapsed.
I
disagree
with
the
majority
here
because
I
think
the
regulation
reflects
a
reasonable
interpretation
of
42
U.
S.
C.
s
7506(
c)(
2)(
C).
That
provision
prohibits
metropolitan
planning
organizations
(
known
as
"
MPOs")
and
other
recipients
of
federal
funds
from
approving
certain
transportation
projects,
including
those
covered
by
the
challenged
regulation,
unless
the
projects
"
come[
]
from
a
conforming
plan
and
program."
The
majority
holds
that
this
phrase
requires
the
projects
in
question
to
come
from
a
plan
and
program
that
conforms
at
the
time
of
approval.

EPA
argues
that
the
phrase
allows
approval
of
any
project
that
comes
from
a
plan
and
program
that
conformed
at
one
time,
even
if
the
approval
is
given
after
conformity
has
lapsed.
The
statutory
text
permits
EPA's
view,
and
the
agency's
interpretation
is
reasonable
in
light
of
its
goal
of
protecting
localities
from
disruption
caused
by
conformity
lapses,
which
appear
frequently
to
be
beyond
local
control.
The
Department
of
Transportation
must
redetermine
the
conformity
of
plans
and
programs
every
three
years,
and
must
also
make
a
new
conformity
determination
within
18
months
of
EPA
approval
of
a
SIP
revision
that
establishes
or
changes
emissions
budgets,
among
other
circumstances.
If
the
DOT
fails
to
make
the
required
determinations
within
the
prescribed
time
frames,
conformity
will
lapse.
See
40
CFR
ss
93.104(
b)(
3),
93.104(
e).

The
majority
argues
that
since
the
phrase
"
comes
from
a
conforming
plan
and
program"
is
in
the
present
tense,
its
"
ordinary
meaning"
is
"
comes
from
a
currently
conforming
plan
and
program."
Maj.
Op.
at
9.
But
that
is
too
simple;
the
phrase
is
ambiguous.
"
Comes
from
X"
can
mean
"
has
its
origin
in
X,"
and
when
the
phrase
is
used
that
way,
the
time
for
determining
X's
qualities
can
be
the
time
of
origination.
A
Belfaster
who
10
years
from
now
says
he
"
comes
from
a
bleeding
land"
will
be
understood­­
no
matter
how
effective
the
recent
peace
accord.
A
layabout
who
says
he
"
comes
from
a
hard­
working
family"
can
be
telling
the
truth
even
if
all
his
relatives
are
dead.
1
The
majority
advances
three
arguments
against
EPA's
interpretation
here­­
one
based
on
the
use
of
the
word
"
conforming
elsewhere
in
the
statute,
another
on
the
requirements
of
another
statutory
provision
dealing
with
conformity,
and
the
third
on
the
legislative
history.
None
is
persuasive.

First,
the
majority
appeals
to
the
use
of
the
word
"
conforming
as
an
adjective
in
s
7506(
c)(
2)(
D).
This
argument
starts
with
the
decision
that
the
"
conforming"
is
used
in
that
provision
to
mean
"
currently
conforming."
Next,
the
majority
argues
that
since
(
c)(
2)(
D)
and
(
c)(
2)(
C)
provide
alternate
ways
of
determining
project
conformity,
the
term
should
be
read
to
mean
the
same
thing
in
each
paragraph.
Together,
these
propositions
lead
the
majority
to
the
conclusion
that
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(
c)(
2)(
C)
also
requires
a
"
currently
conforming"
plan.

The
determination
that
(
c)(
2)(
D)
requires
a
"
currently
conforming
plan
is
surely
contestable.
2
But
even
if
it
is
correct,
it
was
reasonable
for
EPA
to
decide
that
this
stricture
did
not
carry
over
to
(
c)(
2)(
C).
First,
the
provisions
differ
in
lan­
__________
1
It
might
be
said
that
transportation
projects
do
not
"
originate"
in
transportation
plans
or
programs;
projects
in
a
plan
may
be
more
like
stories
in
an
anthology
than
chapters
in
a
novel.
But
the
hypothesis
is
not
strong
enough
to
give
the
phrase
"
comes
from
a
conforming
plan"
the
clear
meaning
that
the
majority
finds.
The
statute
establishing
the
federal
transportation
planning
process
prescribes
the
designation
of
MPOs
to
carry
out
a
"
continuing,
cooperative,
and
comprehensive"
planning
process,
23
U.
S.
C.
s
134(
a),
by
developing
plans
and
programs
that
contain
the
projects
to
be
implemented,
id.
s
134(
h)(
2)(
A).
This
language,
if
anything,
suggests
the
novel
metaphor
more
than
the
anthology;
in
any
event,
it
cannot
be
said
to
establish
the
anthology
metaphor
with
the
clarity
necessary
for
the
majority's
interpretation.
2
The
majority
cites
two
pieces
of
evidence
for
its
idea
that
the
plan
must
be
currently
conforming,
the
Clean
Air
Conference
Report
and
a
statement
by
EPA.
Assertions
contained
in
the
former
document,
despite
what
the
majority
says,
are
not
interpretations
by
"
Congress,"
Maj.
Op.
at
12­
13,
but
by
committee
draftspersons
With
respect
to
the
EPA's
statement,
even
if
the
majority
were
correct
that
the
agency
has
contradicted
itself
in
its
interpretations
of
(
c)(
2)(
D)
and
(
c)(
2)(
C),
the
existence
of
that
guage:
the
former
provision
lacks
the
phrase
"
comes
from,"
and
has
no
other
linguistic
hook
suggesting
that
one
should
look
back
to
an
earlier
time
of
origin.
Second,
I
find
nothing
"
odd,"
Maj.
Op.
at
10,
from
a
substantive
point
of
view
about
the
difference
EPA's
interpretation
creates
between
the
two
ways
of
determining
project
conformity.
Section
7506(
c)(
2)(
C)
governs
projects
that
were
included
in
plans
and
programs
that
have
gone
through
a
conformity
determination,
while
(
c)(
2)(
D)
governs
projects
that
were
never
before
considered
in
such
a
determination.
In
light
of
the
intent
of
the
Clean
Air
Act
amendments
to
foster
state­
federal
partnership
it
is
not
unreasonable
for
EPA
to
protect
states'
reliance
interest
where
a
project
has
already
been
considered
in
a
conformity
determination;
no
such
reliance
interest
exists
for
projects
that
fall
under
(
c)(
2)(
D).

The
majority
next
finds
EPA's
regulation
flawed
because
it
allows
approval
of
projects
that
violate
s
7506(
c)(
1),
which
defines
conformity
in
general
terms
and
applies
to
all
federal
activities,
not
just
transportation­
related
ones.
In
its
essence
s
7506(
c)(
1)
forbids
federal
activities
that
will
cause,
worsen,
or
prolong
violations
of
air
quality
standards.
It
also
forbids
MPO
approval
of
projects
with
such
effects.

The
majority
holds
that
because
EPA's
rule
allows
MPO
approval
of
transportation
projects
from
transportation
plans
that
are
not
in
conformity
at
the
time
of
approval,
it
allows
MPOs
to
approve
projects
that
do
not
meet
s
7506(
c)(
1)'
s
requirements
and
thus
violates
that
section.

In
doing
so,
the
majority
embraces
an
argument
that
EDF's
opening
brief
raised
only
in
a
novel
and
somewhat
deceptive
way.
It
mentioned
the
claim
in
two
sentences
of
its
"
Summary
of
Argument,"
but
not
at
all
thereafter.
See
EDF
Br.
at
13.
In
its
main
argument,
instead,
EDF
claimed
that
s
93.121
violated
s
7506(
c)(
2).
Its
only
argument
from
s
7506(
c)(
1)
was
a
general
one­­
that
EPA
should
issue
fur­

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__________
contradiction
tells
us
at
most
that
one
of
the
interpretations
must
be
wrong­­
not
that
the
EPA's
reading
of
(
c)(
2)(
D)
must
be
right.

ther
regulations
implementing
that
provision;
and
on
that
subject
it
didn't
mention
s
93.121,
although
it
gave
examples
of
other
regulations
that
in
its
view
showed
that
the
new
conformity
rule
allowed
violations
of
s
7506(
c)(
1).
Unsurprisingly
EPA
did
not
respond
to
the
(
c)(
1)
argument.

The
majority
argues
that
EDF
did
come
through
with
an
elaboration
of
its
(
c)(
1)
claim
at
pages
23­
25
of
its
brief.
But
the
referenced
argument
is
quite
distinct.
It
is
based
on
a
perceived
tension
between
EPA's
interpretation
of
(
c)(
2)(
C)
and
another
statutory
provision,
s
7506(
c)(
4).
There
is
no
explicit
mention
of
(
c)(
1)
in
the
passage,
nor
is
there
an
implicit
claim
that
EPA's
interpretation
violates
(
c)(
1).
Instead
the
discussion
elaborates
on
the
supposed
problems
for
EPA's
interpretation
created
by
s
7506(
c)(
4),
which
calls
for
periodic
redetermination
of
the
conformity
of
transportation
plans
and
programs.
EDF's
heading
says
that
the
EPA's
regulation
"
Eviscerates
Congress'
Decision
to
Set
Time
Limits
on
Plan,
TIP
and
Project
Conformity,"
EDF
Br.
at
23,
and
the
text
goes
on
immediately
to
cite
s
7506(
c)(
4),
which
indeed
sets
such
time
limits.
Raising
one
argument
is
not
an
implicit
raising
of
the
other.

The
closest
EDF
comes
to
making
the
(
c)(
1)
argument
is
its
claim
that
EPA's
interpretation
allows
regions
to
"
continue
implementing
transportation
systems
designed
to
meet
older
emissions
targets
no
longer
adequate
to
attain
the
NAAQS."
EDF
Br.
at
24.
This
sentence
appears
in
the
midst
of
the
(
c)(
4)
argument
and
is
best
read
as
an
illustration
of
the
alleged
tension
between
that
provision
and
EPA's
regulation,
not
as
raising
a
claim
based
on
(
c)(
1).
Though
the
sentence
does
contain
the
word
"
attainment,"
which
also
appears
in
(
c)(
1),
there
is
no
other
textual
reference
to
the
statutory
provision,
and
no
implicit
reference
is
obvious.
A
project
does
not
violate
the
relevant
provisions
of
(
c)(
1)
unless
it
actually
causes,
worsens,
or
prolongs
a
violation
of
the
NAAQS,
or
is
not
in
"
conformity
to
[
the
relevant
SIP's]
purpose
of
...
achieving
expeditious
attainment"
of
the
NAAQS.
It
is
by
no
means
clear
that
progress
toward
targets
that
are
"
no
longer
adequate"
fits
into
any
of
those
categories.
The
vaguely
drafted
last
category
(
requiring
"
conformity
to
[
a
plan's]
purpose
of
...
achieving
expeditious
attainment")
is
the
most
likely
candidate,
but
EDF
never
even
hints
at
an
explanation
of
how
a
purpose
is
thwarted
by
inadequate
contribution
to
its
realization.
That
judges
are
able
to
find
a
dim
connection
between
EDF's
argument
and
(
c)(
1)­­
after
the
fact­­
is
hardly
a
showing
that
EDF
raised
a
(
c)(
1)
argument.

In
the
interests
of
fairness
to
parties
and
avoidance
of
improvident
decisions,
we
normally
refuse
to
consider
arguments
that
are
raised
only
in
the
reply
brief.
See,
e.
g.,
Doolin
Sec.
Sav.
Bank
v.
OTS,
156
F.
3d
190,
191
(
D.
C.
Cir.
1998).
This
rule
also
extends
to
arguments
raised
in
only
a
conclusory
fashion
in
the
opening
brief
and
not
addressed
by
appellee.
See
Texas
Rural
Legal
Aid,
Inc.
v.
Legal
Servs.
Corp.,
940
F.
2d
685,
697­
98
(
D.
C.
Cir.
1991).
The
rule
is
especially
compelling
when
the
statutory
and
regulatory
scheme
presents
as
many
opportunities
for
error
as
this
one.

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In
any
event,
even
if
the
argument
had
been
properly
raised
it
should
have
been
rejected.
To
understand
why,
we
have
to
look
at
the
overall
structure
of
s
7506(
c).
Section
7506(
c)(
1)
is
a
general
requirement
covering
federal
activities.
It
forbids
federal
entities
to
engage
in
activities
that
do
not
conform
to
an
applicable
SIP
and,
in
subparagraphs
(
A)
and
(
B),
gives
a
definition
of
conformity.
Sections
7506(
c)(
2)
and
(
3)
both
address
transportation
and
provide
rules
for
conformity
determinations
in
that
context.
Section
7506(
c)(
3)
establishes
interim
rules,
and
s
7506(
c)(
2)
is
the
main
transportation
conformity
provision.

The
majority's
opinion
assumes
that
situations
governed
by
(
c)(
2)
are
also
governed
by
(
c)(
1).
But
the
statute
can
reasonably
be
read
to
say
that
(
c)(
2)
and
(
c)(
3)
govern
exclusively
in
their
own
domains.
On
this
reading,
s
93.121(
a)(
1),
which
governs
a
situation
covered
by
(
c)(
2)(
C),
would
not
be
subject
to
invalidation
under
(
c)(
1).

The
most
obvious
support
for
this
reading
comes
from
the
fact
that
the
specific
transportation
conformity
requirements
are
not
entirely
consistent
with
the
general
conformity
requirements
so
that
applying
(
c)(
1)
to
all
situations
governed
by
(
c)(
2)
and
(
c)(
3)
produces
contradiction.
Section
7506(
c)(
3),
for
instance,
provides
that
"
conformity"
of
a
plan
"
will
be
demonstrated"
if
the
plan
contributes
to
annual
emissions
reductions
of
ozone
and
carbon
monoxide
and
meets
certain
other
requirements
not
relevant
here.
See
s
7506(
c)(
3)(
A)(
iii).
Thus,
a
plan
allowing
activities
that
cause
a
violation
of
(
for
example)
particulate
matter
standards
is
in
conformity
under
(
c)(
3)
as
long
as
the
other
requirements
are
met.
Not
so
under
the
general
rules
of
(
c)(
1),
since
that
provision
forbids
activities
that
cause
violations
of
"
any
standard."
See
s
7506(
c)(
1)(
B)(
i).
The
transportation­
specific
(
c)(
3)
rule
triumphs
in
this
conflict.
Each
statutory
provision
is
normally
presumed
to
serve
a
function;
thus
a
specific
provision
governing
a
set
of
circumstances
entirely
within
a
more
general
one
must,
within
its
own
scope,
prevail
over
the
more
general.
Otherwise
it
would
be
deprived
of
its
function.
Cf.
Hemenway
v.
Peabody
Coal
Co.,
159
F.
3d
255,
264
(
7th
Cir.
1998)
(
noting
that
where
the
scope
of
one
provision
is
not
completely
contained
within
the
scope
of
the
other
it
is
impossible
to
call
either
"
more
specific").
That
is
the
case
here.
Subsection
(
c)(
1)
nominally
covers
all
federal
activities,
and
(
c)(
3)
covers
only
transportation
activities,
and
those
only
for
a
limited
time.

Section
7506(
c)(
2)(
A)
also
supports
the
view
that
the
specific
requirements
replace
the
general
ones.
It
requires
a
finding
that
a
transportation
plan
or
program
"
will
conform
to
the
requirements
of
[
s
7506(
c)(
1)(
B)]"
before
the
plan
or
program
can
be
found
in
conformity.
The
majority
dubs
my
observation
to
this
effect
a
"
concession."
Maj.
Op.
at
10.
But
since
the
issue
here
is
what
(
c)(
2)(
C)
requires,
(
c)(
2)(
A)'
s
specific
imposition
of
the
requirement
makes
clear
that
the
draftsmen,
contrary
to
the
majority,
understood
that
the
generality
of
(
c)(
2)
situations
did
not
require
compliance
with
(
c)(
1).

Thus,
it
appears
that
it
would
be
reasonable
for
EPA
to
find
that
(
c)(
1)'
s
requirements
do
not
apply
to
situations
governed
by
(
c)(
2)
and
(
c)(
3)
except
where
specifically
incorporated
There
is
no
such
specific
incorporating
language
in
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(
c)(
2)(
C),
the
transportation
project
conformity
provision
that
governs
here.
I
cannot
find
any
assertion
of
this
analysis
in
the
record
of
the
rulemaking,
but
as
EDF
did
not
properly
raise
the
issue,
EPA
has
had
no
real
opportunity
to
explain
its
view
of
how
(
c)'
s
subsections
relate
to
each
other.

Finally,
the
majority
points
to
statements
in
the
legislative
history.
In
general
these
say
that
one
purpose
of
the
CAA
amendments
was
to
promote
integration
of
the
air
quality
and
transportation
planning
processes,
a
proposition
with
which
neither
EPA
nor
anyone
else
has
any
quarrel.
And
the
majority
ends
as
it
began,
with
an
appeal
to
(
c)(
2)(
D)'
s
purported
requirement
of
a
"
currently
conforming"
plan.
As
I
explained
above,
this
stricture,
if
it
exists,
does
not
bind
EPA
in
interpreting
(
c)(
2)(
C).

Thus,
Congress
has
not
"
directly
addressed
the
precise
question
at
issue"
in
this
case,
Chevron
U.
S.
A.
Inc.
v.
NRDC,
467
U.
S.
837,
843
(
1984),
so
we
must
uphold
the
EPA's
resolution
of
the
statutory
ambiguities
if
it
is
reasonable.
And
it
is,
given
the
Act's
overall
purpose
to
promote
a
cooperative
regime
of
integrated
planning.

Although
the
EPA's
treatment
of
non­
federally
funded
projects
seems
to
me
reasonable
as
a
matter
of
statutory
interpretation,
I
have
found
nothing
in
the
record
adequately
explaining
its
different
treatment
of
federally
and
nonfederally
funded
projects.
Under
s
93.121(
a)(
1),
a
project
that
is
not
federally
funded
may
be
approved
by
an
MPO
as
long
as
it
comes
from
the
first
three
years
of
a
transportation
plan
that
once
was
in
conformity.
But
a
federally
funded
project
may
not
be
approved
unless
there
is
a
"
currently
conforming
transportation
plan
and
currently
conforming
TIP
at
the
time
of
project
approval."
See
40
CFR
s
93.114.
Nothing
in
the
statute
appears
to
justify
such
a
distinction,
and
EPA's
only
explanation
for
the
disparate
treatment
appears
to
be
that
"
the
existence
of
a
conforming
plan
and
TIP
is
not
necessary
to
facilitate
the
implementation
of
[
nonfederal
projects."
62
Fed.
Reg.
43,780,
43,790
(
1997).
It
is
undisputed
that
nonfederal
projects
can
be
funded
without
a
currently
conforming
plan
and
TIP
in
place,
while
federal
projects
cannot.
42
U.
S.
C.
s
7506(
c)(
2)
provides
that
"[
n]
o
Federal
agency
may
...
fund
any
...
project
unless
such
...
project
has
been
found
to
conform
to
any
applicable
implementation
plan....
",
while
no
such
restriction
covers
nonfederal
projects.
But
EPA
has
not
explained
why
that
difference
is
relevant
to
the
project
approval,
as
to
which
the
statutory
requirements
draw
no
evident
distinction
between
federal
and
nonfederal
contexts.
Because
the
EPA
may
be
able
to
explain
the
difference,
and
if
not
might
adopt
for
federal
projects
the
rule
it
has
chosen
for
non­
federal
ones,
and
in
order
to
avoid
the
disruption
that
would
be
caused
by
an
interim
change
that
might
itself
be
changed,
I
would
simply
remand
for
further
explanation.
See
A.
L.
Pharma,
Inc.
v.
Shalala,
62
F.
3d
1484,
1492
(
D.
C.
Cir.
1995).

II.
Grandfathering
of
federally
funded
projects
unless
three
years
elapse
between
major
steps
40
CFR
s
93.102(
c)(
1)
provides
that
transportation
projects
that
have
been
once
determined
to
be
in
conformity
may
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proceed
toward
completion
without
further
conformity
determinations
unless
more
than
three
years
elapse
between
"
major
steps"
of
the
project.
The
majority
invalidates
this
socalled
"
grandfathering"
provision
on
the
basis
of
the
same
construction
of
the
statute
that
leads
it
to
invalidate
s
93.121(
a)(
1)­­
its
reading
of
the
words
"
comes
from
a
conforming
plan
and
program"
in
s
7506(
c)(
2)(
C)(
i).
For
the
reasons
given
in
the
preceding
section,
I
disagree.

III.
Use
of
emissions
budgets
from
unapproved/
disapproved
SIP
revisions
and
reallocation
of
safety
margins
The
majority
next
addresses
three
regulations
that
allow
conformity
to
be
determined
on
the
basis
of
emissions
budgets
contained
in
SIP
revisions
that
EPA
has
not
approved,
remanding
two
and
vacating
one.
The
first
of
these,
40
CFR
s
93.118(
e)(
1),
allows
an
MPO
or
DOT
to
show
consistency
with
emissions
budgets
in
unapproved
SIP
revisions
in
conformity
determinations
starting
45
days
after
submission
of
the
revision.
In
short,
anticipating
that
sometimes
it
will
be
unable
to
pass
on
proposed
SIP
revisions
promptly,
the
agency
provides
for
use
of
a
second­
best
substitute
after
45
days.

The
majority's
sole
basis
for
remanding
this
provision
is
the
proposition
that
the
regulation
is
insufficient
to
ensure
compliance
with
42
U.
S.
C.
s
7506(
c)(
1)(
B),
the
governmentwide
conformity
requirements.
The
theory
is
faulty.
Even
if
we
assume
that
(
c)(
1)
applies
generally
to
transportation
projects
covered
by
ss
7506(
c)(
2)
and
(
3)
(
contrary
to
my
analysis
in
part
I),
s
93.118(
e)(
1)
does
not
allow
violations
of
(
c)(
1).
3
Section
7506(
c)(
1)
makes
it
the
"
affirmative
responsibility"
of
an
agency
engaging
in
or
supporting
a
federal
activity
to
assure
that
the
activity
does
not
cause,
exacerbate,
or
prolong
any
violation
of
air
quality
standards.
For
various
reasons
s
93.118(
e)(
1)
is
adequate
to
ensure
that
the
DOT
(
and
MPOs)
carry
out
this
mandate
when
emissions
budgets
have
been
submitted
but
not
yet
approved.
First,
because
EPA
will
approve
SIP
revisions
only
if
the
revised
SIP,
including
the
budgets,
includes
enforceable
control
measures
to
reach
and
maintain
air
quality
standards
by
specified
dates,
see
42
U.
S.
C.
ss
7410(
a)(
1),
(
a)(
2)(
A),
(
k)(
3),
states
have
an
incentive
not
to
submit
the
"
inflated
emissions
budget[
s]"
about
which
EDF
is
concerned.
EDF
Br.
at
33.
Furthermore,
EPA's
regulations
require
a
public
hearing
and
consultation
between
state,
federal,
and
local
agencies
before
the
SIP
revision
can
be
submitted.
See
62
Fed.
Reg.
43,780,
43,781
(
1997).

Just
as
the
substantive
rules
and
procedural
controls
on
SIP
revisions
create
some
probability
that
states
will
file
emissions
budgets
conforming
to
law,
s
93.118(
e)(
6)
makes
the
MPOs
and
DOT
a
further
screen.
It
provides
that
when
conformity
determinations
are
made
under
s
93.118(
e)(
1),
"
the
MPO
and
DOT's
conformity
determinations
will
be
__________
3
The
EPA
argues
that
s
93.118(
e)(
1)
covers
a
gap
between
(
c)(
2)
and
(
c)(
3).
If
so,
then
even
if
(
c)(
2)
and
(
c)(
3)
preempt
(
c)(
1)
where
they
apply,
(
c)(
1)
might
spring
to
life
for
areas
left
blank
by
them.
On
the
other
hand,
(
c)(
2)
and
(
c)(
3)
might
preempt
(
c)(
1)'
s
independent
effect
over
the
entire
field
of
transportation,
including
any
gaps.
Because
I
find
that
s
93.118(
e)(
1)
is
sufficient
to
guard
against
violations
of
(
c)(
1),
I
need
not
reach
that
argument
here.

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deemed
to
be
a
statement
that
the
MPO
and
DOT
are
not
aware
of
any
information
that
would
indicate
that
emissions
consistent
with
the
motor
vehicle
emissions
budget"
would
violate
(
c)(
1).
If
an
MPO
or
DOT
official
is
legally
deemed
to
be
making
such
a
statement,
presumably
he
or
she
will
be
reasonably
careful
that
its
factual
underpinnings
are
valid­­
on
pain,
surely,
of
at
least
a
bureaucratic
black
eye
if
later
experience
should
falsify
the
implicit
representations.

Taken
together,
ss
93.118(
e)(
1)
and
(
e)(
6)
establish
a
high
probability
that
submitted
emissions
budgets
meet
the
requirements
of
(
c)(
1).
And
a
decent
probability
is
all
that
any
system
can
assure:
even
the
EPA
might
err
in
giving
an
approval.
In
light
of
the
purpose
of
the
Clean
Air
Act
to
"
foster"
a
"
process
of
state
and
federal
cooperation,"
EDF
v.
EPA,
82
F.
3d
451,
468
(
D.
C.
Cir.
1996),
and
the
procedures
nurturing
sound
state
decisionmaking,
it
is
hardly
unreasonable
for
EPA
to
allow
the
implied
representation
of
an
MPO
or
DOT
as
fulfilling
its
"
affirmative
responsibility"
to
assure
conformity.

The
majority
emphasizes
the
fact
that
the
MPO
or
DOT
bears
an
"
affirmative
responsibility"
to
assure
conformity.
But
"
affirmative"
can
be
used
essentially
as
an
intensifier
that
emphasizes
the
existence
of
a
responsibility,
rather
than
as
a
prescription
of
some
means
for
its
accomplishment.
See,
e.
g.,
Dayton
Bd.
of
Educ.
v.
Brinkman,
443
U.
S.
526,
538­
39
(
1979);
CBS
v.
DNC,
412
U.
S.
94,
110­
11
(
1973).

EDF's
principal
argument
against
s
93.118(
e)(
1)­­
not
addressed
by
the
majority­­
is
that
that
the
regulation
illegally
allows
conformity
determinations
to
be
made
on
the
basis
of
something
other
than
the
"
applicable
implementation
plan,"
as
required
by
s
7506(
c)(
2)
or
(
c)(
3),
or
an
implementation
plan
that
has
been
"
approved,"
as
required
by
s
7506(
c)(
1),
because
it
allows
a
submitted
SIP
revision
to
be
treated
as
approved
before
approval.
This
somewhat
overstates
the
case.
The
regulation
provides
only
that
the
emissions
budgets
are
to
be
used
to
determine
conformity;
neither
the
regulation
nor
EPA's
comments
state
that
the
revision
may
be
treated
as
approved.
The
potential
problem
with
the
regulation
is
that
it
does
not
provide
a
reasonable
way
of
determining
conformity
with
the
"
applicable,"
that
is,
existing
SIP­­
not
that
it
illegally
allows
revisions
to
be
treated
as
approved
before
they
actually
are.
And
the
regulation
does
provide
a
reasonable
basis
for
determining
conformity
with
the
applicable
SIP,
at
least
in
some
cases.

Section
93.118(
e)(
1)
applies
only
when
the
most
recent
approved
SIP
contains
no
motor
vehicle
emissions
budgets.
In
the
absence
of
emissions
budgets,
the
only
possible
relevant
statutory
provisions
for
finding
conformity
with
the
"
applicable
implementation
plan"
are
ss
7506(
c)(
3),
which
governs
an
interim
period
that
began
with
the
passage
of
the
CAA
amendment,
and
(
c)(
1),
which
as
I
argued
at
15
n.
3
above,
may
govern
any
gap
between
the
end
of
the
(
c)(
3)
interim
period
and
the
approval
of
SIPs
with
emissions
budgets.
My
conclusion
above
that
ss
93.118(
e)(
1)
and
(
e)(
6)
together
provide
a
reasonable
means
of
determining
conformity
addresses
any
application
of
(
c)(
1).

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That
leaves
the
possible
application
of
(
c)(
3).
EPA
has
included
no
requirement
that
the
entity
making
the
conformity
finding
consider
the
activity's
consistency
with
(
c)(
3).
So
there
may
be
a
deficiency
here.
But
it
is
not
clear
whether
s
93.118(
e)(
1)
and
s
7506(
c)(
3)
are
ever
in
effect
at
the
same
time;
some
statements
of
EPA
in
the
rulemaking
suggest
that
the
interim
period
(
c)(
3)
covers
is
over
before
the
emissions
budget
submission
that
triggers
s
93.118(
e)(
1)
takes
place.
See
58
Fed.
Reg.
62,188,
62,191/
1
(
1993)
(
stating
that
although
the
interim
period
lasts
only
until
the
"
conformity
SIP
revisions
are
approved,
EPA
is
extending
the
interim
requirements
until
the
control
strategy
SIPs
[
i.
e.,
the
SIPs
with
emissions
budgets]
are
submitted").
Since
no
party
has
briefed
the
issue
and
the
present
record
is
insufficient
to
answer
the
question,
I
would
remand
the
issue
for
further
explanation.

The
next
regulation
that
the
majority
remands,
40
CFR
s
93.120(
a)(
2),
allows
use
of
emissions
budgets
in
SIP
revisions
that
EPA
has
disapproved
for
120
days
after
the
disapproval.
The
majority
rejects
it
on
the
same
ground
as
s
93.118(
e)(
1)­­
failure
to
ensure
compliance
with
(
c)(
1).
I
agree
with
the
majority
that
if
(
c)(
1)
is
applicable,
s
93.120(
a)(
2)
cannot
be
said
to
satisfy
it.
Unlike
s
93.118(
e)(
1),
this
section
cannot
be
defended
as
governing
cases
where
there
are
reasonable
guarantees
that
the
permitted
transportation
activities
will
not
violate
s
7506(
c)(
1);
the
budgets
at
issue
have
actually
been
rejected
as
inadequate.
If
(
c)(
3)
is
applicable
to
situations
covered
by
s
93.120(
a)(
2),
that
section
is
likely
violated
as
well;
(
c)(
3)(
A)(
iii)
requires
plans
and
programs
to
"
contribute
to
annual
reductions"
in
ozone
and
carbon
monoxide
nonattainment
areas,
and
there
is
no
reason
to
believe
that
emissions
budgets
specifically
disapproved
without
a
protective
finding
meet
that
criterion.
It
is
possible,
however,
that
none
of
(
c)(
1),
(
2),
or
(
3)
apply.
Perhaps
(
c)(
2)
and
(
3)
entirely
preempt
(
c)(
1)
with
respect
to
transportation
and
s
93.120(
a)(
2)
applies
only
during
a
gap
that
may,
as
I
explained
above,
exist
between
those
two
provisions.
Although
EPA
argues
that
s
93.120(
a)(
2)
exists
in
a
statutory
gap,
its
brief
and
rulemaking
statements
fail
to
explain
just
why
such
a
gap
exists.
Thus,
I
would
require
further
explanation
of
the
statutory
basis
for
this
regulation
as
well.

The
last
of
the
challenged
regulations,
40
CFR
s
93.124(
b),
applies
to
states
with
SIPs
that
indicate
that
emissions
from
all
sources
are
less
than
the
total
emissions
that
would
be
consistent
with
attainment
of
air
quality
standards
and
that
quantify
that
"
safety
margin."
The
regulation
allows
such
states
to
submit
a
SIP
revision
that
assigns
some
of
the
safety
margin
to
transportation
sources
and
to
use
the
revision
for
conformity
purposes
before
it
is
approved
by
EPA.
The
majority
invalidates
this
provision
for
the
same
reason
EDF
argues
the
last
two
provisions
should
be
invalidated­­
the
regulation
violates
the
requirement
that
conformity
determinations
be
"
based
on
a
SIP
'
approved
or
promulgated
under
section
7410
of
this
title.'
"
Maj.
Op.
at
19.
Here,
it
seems
clear
that
activities
found
in
conformity
on
the
basis
of
the
"
safety
margin"
will
not
cause,
worsen,
or
prolong
violations
of
air
quality
standards,
and
thus
that
they
conform
to
the
applicable
implementation
plan
under
s
7506(
c)(
1).
EDF
has
given
no
reason
to
doubt
this
conclusion,
or
to
believe
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97­
1637a.
tx
that
activities
producing
emissions
within
the
"
safety
margin"
violate
s
7506(
c)(
3).
Thus,
as
above,
the
regulation
can
reasonably
be
read
to
authorize
the
"
use"
of
the
revision
as
a
reasonable
alternate
means
of
finding
conformity
with
the
existing
SIP,
rather
than
an
illegitimate
means
of
prematurely
amending
one.

I
dissent.

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199903/
97­
1637a.
tx
