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In a ruling that could directly impact thousands of Philadelphia-area drivers, a federal judge has declared that Pennsylvania is violating the Clean Air Act by failing to enforce stricter rules for automobile inspections. In his 36-page opinion in Clean Air Council v. Mallory, Senior U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania said he will issue an injunction after holding an evidentiary hearing “to determine the schedule on which defendants will be required to fully implement the final motor vehicle inspection and maintenance program in the five-county Philadelphia area.” The ruling is a victory for attorneys David S. Baron and J. Todd Hutchins of Earthjustice Legal Defense Fund in Washington, D.C., and Joseph O. Minott of Delaware Valley Citizens Council for Clean Air. Technically, DuBois found that two Pennsylvania officials — Bradley L. Mallory, the secretary of the Department of Transportation, and James M. Seif, the secretary of the Department of Environmental Protection — are in violation of the Clean Air Act’s emission standards because they have failed to follow through on promises to come into compliance with federal air quality standards. Under the Clean Air Act, the U.S. Environmental Protection Agency sets “national ambient air quality standards,” or NAAQS, at levels designed to ensure public health. When a region of the country is found to have pollution levels above the NAAQS, the region is labeled a “non-attainment” zone, and EPA officials then assess the severity of the situation on a five-point scale from “moderate” to “extreme.” In 1997, a region that includes southeastern Pennsylvania and parts of New Jersey and Delaware was found by the EPA to be in severe non-attainment. As a result, Pennsylvania was required to submit a “State Implementation Plan,” or SIP, that outlined its plans for tackling the problem. Over the next two years, Pennsylvania submitted a series of SIPs, four of which were approved by the EPA. In its lawsuit, the Clean Air Council alleged that the Pennsylvania agencies responsible for implementing the SIPs had fallen down on the job. The suit focused on Pennsylvania’s promise that it would institute “enhanced” inspections of cars and trucks in an effort to reduce emissions of ozone-forming pollutants. Although the lawyers on both sides agreed on many of the facts, they had sharp disagreements about the law. In a recent hearing, when DuBois asked whether there was any chance of a settlement, both sides said they had tried to work out a solution, but that the legal disagreements were fundamental and stood in the way of any compromise. Now DuBois has sided entirely with the plaintiffs and found that the law mandates that an injunction issue requiring Pennsylvania to comply with the promises it made in its SIPs. Significantly, DuBois rejected the state’s argument that it is entitled to immunity under the 11th Amendment. Plaintiffs’ lawyers argued that the suit fell under a well-recognized exception to the 11th Amendment — the Ex Parte Young exception — that allows suits against individual state officers for prospective relief to end an ongoing violation of federal law. But PennDOT attorneys Robert J. Shea and Audrey Feinman Miner argued that the U.S. Supreme Court has significantly narrowed the Ex Parte Young exception with its 1996 decision in Seminole Tribe of Florida v. Florida. Under Seminole Tribe, they argued, the Ex Parte Young exception is not available where “Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right.” DuBois disagreed, saying that while Seminole Tribe narrowed the applicability of the Ex Parte Young doctrine in certain instances, the high court’s ruling had no impact on cases brought under the Clean Air Act. In Seminole Tribe, DuBois said, the justices weighed the propriety of allowing private suits under the Indian Gaming and Regulatory Act, and concluded that Congress’ decision to include an elaborate remedial scheme in the act demonstrated that it did not intend to subject states and state officials to liability under the statute. By contrast, DuBois said, when Congress enacted the Clean Air Act, it included a citizen suit provision in the statute’s remedial scheme. “The citizen suit provision plays an integral role in the remedial scheme of the CAA; it serves to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if agencies remain inert, to provide an alternative enforcement mechanism,” DuBois wrote. “By including the terms ‘any person’ and ‘to the extent permitted by the Eleventh Amendment,’ this Court finds that Congress clearly meant to allow private citizens to use this provision as a means of private enforcement against state officials within the limits of the 11th Amendment,” DuBois wrote. In so ruling, DuBois said he relied on the decisions in a number of other post- Seminole Tribe cases that upheld the citizen suit provisions of other environmental statutes — the Clean Water Act, the Endangered Species Act and the Resource Recovery and Conservation Act. PennDOT’s lawyers argued that the state chose not to implement the SIPs because the enhanced auto inspections resulted in failure rates for 1995 and older vehicles that were significantly higher than expected. The only explanation for such a large increase in failure rates, they said, was a significant level of false failures, which ultimately require motorists to make unnecessary repairs and negatively impact the integrity of the enhanced inspection program. They also cited an April 2001 letter from Margo T. Oge, the director of the EPA’s Office of Transportation and Air Quality, that said the EPA “strongly advises Pennsylvania not to implement the [enhanced inspections] for 1995 and older vehicles until … research is complete and final guidance is issued.” In light of the EPA letter, they said, the state decided to await issuance of the study before implementation. DuBois rejected the argument, saying it was irrelevant to the question of whether Pennsylvania is in violation of the Clean Air Act, but said he would consider it later when deciding the appropriate remedy.

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