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Environmentalists are asking federal judges to order the U.S. Environmental Protection Agency to enforce its missed deadline for cleaning Atlanta’s air. A win for environmental groups could result in restrictions on new industry, less polluting but more expensive gasoline, and further jeopardizing of the state’s access to federal highway money. J. David Farren, a lawyer for Georgians for Transportation Alternatives, told a three-judge 11th Circuit panel Tuesday that in February the EPA illegally extended the Nov. 15, 1999 deadline for Georgia meeting minimum air quality standards in Atlanta. Georgians for Transportation Alternatives v. U.S. Environmental Protection Agency, No. 0012187 (11th Cir. July 24, 2000). The group, also comprising the Southern Environmental Law Center, the Sierra Club, the Southern Organizing Committee for Economic and Social Justice and the Georgia Coalition for the People’s Agenda, is asking the court to vacate the extension. In their brief, lawyers for the petitioners argue that the EPA’s action violates the language of the statute that it’s supposed to enforce. The statute grants the EPA no leeway to extend the deadline, they argued, citing Chevron, USA, Inc. v. NRDC, 467 US 837, 842-43 (1984). Petitioners claim the EPA granted a de facto extension by approving the state’s proposed limits for automobile emissions in Atlanta. Vacating that EPA finding might result in Atlanta’s air pollution being reclassified as “severe,” the EPA’s second-harshest rating. Cities classified as severe, like Sacramento and Baltimore, often must turn to expensive reformulated gasoline and offsets, which would require the state to cut emissions by more than the amount a new industrial plant would pump into the air. The ruling also indirectly might cut off the state’s access to federal highway money. The state is expecting the restoration of road funds, which have been restricted because the area previously had failed to achieve air quality standards. If the state cannot show sufficient progress in cleaning Atlanta’s air, it could lose that money again. “It’s not so much that we want that to happen,” says S. Wesley Woolf of the Southern Environmental Law Center says. “It’s just what the Clean Air Act requires.” EPA: EXTENSION ONLY INFORMAL The EPA argues that it never actually granted a formal extension for Atlanta, only an informal postponement for the purposes of drafting the full state pollution control plan. According to EPA officials, that plan should be ready by the end of this year. Thomas A. Lorenzen, Senior Counsel for Appellate Matters for the Environmental Defense Section of the U.S. Department of Justice, told the court the EPA had made no decision on extending the air quality deadline. He asked the court to remand the issue on whether to grant an extension to the agency. Petitioners’ lawyer S. Wesley Woolf of the Southern Environmental Law Center says the EPA has only two options if the court validates its authority to grant an extension: it can grant an extension based on pollution from out of state, or reclassify Atlanta’s failure to meet air quality standards from “serious” non-attainment to “severe.” JUDGES GRILL EPA OFFICIALS Farren and Lorenzen each weathered pointed questioning from 11th Circuit Judges Stanley F. Birch Jr., Gerald B. Tjoflat and Joel F. Dubina. The panel forced counsel to consider issues of the Clean Air Act’s plain language and the permanence of the EPA’s action. How much clearer can a statute be? Birch asked Lorenzen. Congress set a specific, explicit date, he said. “This turned out to be a much more intractable problem than anyone had expected,” Lorenzen responded. “If there’s a problem with it you don’t ignore the law,” Birch said. “You go back to Congress.” Tjoflat and Dubina grilled Farren on the EPA’s contention that any ruling the court renders would be provisional. That is, it would only apply until the EPA adopts the new state pollution control plan. Farren responded that a ruling for the petitioners would prevent the EPA from giving the state more time to comply without either reclassifying the city or applying the formal extension policy. Woolf and Farren’s clients brought their petition to the 11th Circuit following a Feb. 15 ruling by the Region 4 administration of the EPA, which certified the Atlanta area’s motor vehicle emissions budgets as “adequate” for meeting Clean Air Act standards by 2003. Those budgets set the limits of the pollutants that automobile traffic can pump into Atlanta’s air. The court granted petitioners a stay of the EPA finding July 18. According to the EPA brief, the agency had proposed only to approve the emissions budget if Georgia meets the law’s criteria for an extension. The EPA has asked the court to remand the decision on an extension to the agency so that it can take into account the adequacy finding and rule on the entire state’s plan later this year. EPA lawyers argue that if the agency approves the state plan and extends the deadline, that would be the time to take the agency to court. If the agency decides to reclassify the city as “severe,” then the environmental groups have what they want and there’s no need to come to court. The director of the Sierra Club’s Georgia Challenge to Sprawl Campaign, Bryan K. Hager, says the EPA often delays such rulings to allow states to get the maximum benefit from old emissions standards that they have already met. King & Spalding partner Patricia T. Barmeyer, arguing as special assistant attorney general for Georgia, agreed the court should remand the case to the EPA because the act is contradictory. In addition to the deadline, it allows an extension for states to clean up pollution that comes from other states, she said. Reclassifying the Atlanta area now would be unfair, because about 9 percent of area pollutants come from elsewhere. “It’s punitive for the state of Georgia,” she told the panel. The state is an intervening respondent in the case.

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