Clean Air Act General Conformity Determinations and the Air Force

MAJOR SUSAN M. FALL, USAF /\*/

**I. INTRODUCTION**

The modern Clean Air Act is the product of nearly a dozen separate Acts
of Congress over the course of the last forty years. /1/ The Act, as it
is structured today, was adopted in 1970, /^2/^ and is the primary
federal statute regulating air quality and emissions of pollutants into
the air. It is comprised of several different titles, each providing
different types of limitations on pollutant emissions. /3/

The 1970 Clean Air Act (the Act) required the Federal Government to
establish air quality goals by (inter alia) giving authority to the
Administrator of the Environmental Protection Agency (EPA) to prescribe
national ambient air quality standards (NAAQS). ^/4/^ In 1970, the
United States was growing rapidly, with only a four percent unemployment
rate and a two percent inflation rate /5/ Optimism encouraged Congress
to enact \"an ambitious law\" when it sought to refine air pollution
regulation. /6/ It became clear by 1977, however, that changes were
necessary if the goals of the Clean Air Act were to be achieved. /7/

The 1977 amendments to the Clean Air Act included, for the first time,
the concept of \"conformity.\" Conformity is the \"mechanism intended to
ensure that departments, agencies, or instrumentalities of the Federal
Government do not take, approve, or support actions that are in any way
inconsistent with a state\'s plan to attain and maintain the national
ambient air quality standards.\" /8/ Conformity applies only to federal
actions, not to the entire regulated community. As such, it particularly
affects the Department of Defense (DOD) and has been called
\"\[p\]robably the most significant single environmental obstacle to
\[military\] base conversion.\" /^9/^ This article will explore the
concept of general conformity, how general conformity can affect base
closure and recent conformity litigation that is likely to affect DOD\'s
activities now and in the future.

II\. HISTORICAL BACKGROUND OF THE CLEAN AIR ACT\'S CONFORMITY PROVISION

**A. The Clean Air Act Before Conformity**

Before 1970, state and federal officials could use their discretion in
balancing environmental goals with other concerns when implementing the

Clean Air Act. /10/ After the 1970 version of the Act was implemented,
clean air was to be achieved by removing discretionary application of
the Act and directing federal and state officials to take action. /11/
By creating the NAAQS, the Clean Air Act Amendments of 1970 established
a method by which federal and state authorities were required to work
hand in hand to create and implement air quality regulation.

The purpose of the 1970 Clean Air Act was to \"speed up, expand, and
intensify the war against air pollution.\" /12/ Not a whisper of the
word \"conformity\" appears in the Act. Rather, the 1970 Clean Air Act
merely enabled state implementation plans (SIPS) to include land use and
transportation controls as part of the many options for air pollution
control. /13/ At the same time, the Federal Aid Highway Act of 1970 /14/
required that highway projects be \"consistent\" with air quality plans
adopted by states. Because during this period states rarely developed
serious transportation control plans and the Department of
Transportation (DOT) never required air quality reviews of regional
transportation plans, the sought after \"consistency\" never occurred.
/15/ It became clear that there had to be some better way to deal with
transportation-generated air pollution, which accounted for forty-two
percent (by weight) of the United States\' air pollution. /16/

B. The Legislative History Behind Conformity §176(c)

In 1977, Congress added the conformity requirement to the Clean Air Act
in an effort to deal with transportation-generated air pollution as a
cause for air quality nonattainment. The requirement applied to all
federal and federally assisted activities. No department, agency, or
instrumentality of the Federal Government was permitted to finance,
license, permit, or approve any activity that did not conform to an
EPA-approved SIP. /17/ The 1977 Clean Air Act Amendments did not
specifically define \"conformity,\" /18/ so it was taken to mean nothing
more than conforming to the transportation control measures (TCMs)
contained in a SIP.

After several years of unsuccessful attempts at revamping the Clean Air
Act, Congress was finally able to enact a major overhaul of federal air
pollution control law during the Bush administration. There are several
reasons why the timing was right in 1990 for a Clean Air Act overhaul.
Regulators had discovered that many Clean Air Act provisions were not
effective in reducing pollutants, new research began to reveal the
causes of acid rain and stratospheric ozone depletion, and the general
public was becoming more acutely aware of environmental issues. /^19/^
Additionally, \"the desire of several key representatives and senators
to enhance their reputations by steering a major bill through Congress\"
/20/ as well as active support and participation by the Bush
Administration, made it possible for the administration to propose a
bill to amend the Clean Air Act of 1990. /21/ Although Congress made
numerous changes and fleshed out details in various areas, the bill\'s
basic structure and goals remained intact. The bill was based in part on
ideas considered by the previous Congress, resulting in a finished
product that was \"a nearly equal amalgam of administration and
congressional proposals. /22/ Congress spent several months debating the
amendments, but the final version passed by wide margins in both houses
of Congress - a 401 to 25 vote in the House and an 89-10 vote in the
Senate. President Bush signed the amendments into law on November 15,
1990, ending a thirteen year legislative battle over clean air. ^/24/^

The passage of the 1990 Clean Air Act Amendments made sweeping changes
in air pollution control efforts in the United States. It focused on air
problems which remained unresolved despite twenty years of local, state,
and federal efforts. Title I of the Clean Air Act deals with reduction
of urban ozone and carbon monoxide pollution. In 1990, Title I, which
contains the conformity requirement, shifted its focus from simple
reliance on state control plans to implementation of an air quality
classification system based on severity of pollution and imposition of
specific control measures within each category.

Significantly, in 1990 Congress added \"an extensive clarification\"
regarding conformity to the Clean Air Act. /26/ The 1990 amendments
specified that \"conformity\" means a plan or project must conform to a
SIP\'s purpose of eliminating or reducing NAAQS violations and achieving
expeditious attainment of such standards. The conformity requirement
continued to mandate that the DOT and metropolitan planning
organizations (MPOs) determine whether projects within their purview
conform.

Congress also required EPA to promulgate, by November 15, 1991, new
rules establishing specific criteria and procedures that must be used in
\"determining conformity.\" /^27/^ The EPA failed to issue any
conformity rules by the statutory deadline, prompting the Environmental
Defense Fund (EDF) and the Sierra Club to file suit under 42 U.S.C. §
7604(a)(2) to compel promulgation of such rules. /28/ After settlement
discussions, the parties entered into a stipulated consent decree
requiring EPA to issue final conformity criteria and procedures by
October 15, 1993. /^29/^ On November 24 and November 30, 1993,
respectively, EPA published conformity rules for (1) transportation
plans and projects (known as the \"Transportation Conformity Rule\")
/30/ and (2) other federally funded or supported projects (known as the
\"General Conformity Rule\"). /^31/^ These final rules provided criteria
and procedures for determining conformity in areas deemed
\"nonattainment\" or \"maintenance\" areas. /32/ The EPA expressly
declined, however, to issue a rule on criteria and procedures for
\"attainment\" or \"unclassifiable\" areas.

The 1990 Clean Air Act amendments to § 176 thus created two distinct
programs - general conformity and transportation conformity. Although
associated, the two provisions differ in focus. Transportation
conformity applies to transportation plans, programs, and projects
funded or approved by the Federal Highway Administration (FHWA) or the
Federal Transit Administration (FTA) or recipients of funds from these
organizations. General conformity applies to all other federal actions
in nonattainment areas.

Section § 176(c)(2) of the Clean Air Act is known as the
\"transportation conformity\" provision. Although an in-depth discussion
of transportation conformity is beyond the scope of this article, a
brief explanation is appropriate to enable the reader to differentiate
transportation conformity from general conformity.

The EPA issued final rules establishing criteria and procedures for
transportation conformity on November 15, 1993. /^34/^ They were
codified in Part 51, Subpart T, of the Code of Federal Regulations. /35/
Transportation conformity has been described as \"a quantitative test
intended to prevent uncontrolled increases in vehicle emissions that
undermine the strategy established in the SIP and impede attainment and
maintenance of clean air.\" /36/

The 1990 Clean Air Act Amendments to § 176(c)(2) increased the
contributions that transportation plans, programs and projects must make
toward air quality improvements in nonattainment areas. Transportation
conformity under the federal rule applies to the long-range Regional
Transportation Plan, the shorter-term Transportation Improvement Program
(TIP), all transportation projects that receive funding or require
approval from the FHWA or the FTA, and regionally significant nonfederal
transportation projects that are sponsored by a recipient or federal
highway or transit funds, regardless of whether federal funds were
actually used for the project. Expected emissions from transportation
plans and TIPs must be consistent with the implementation plan\'s motor
vehicle emission estimates and required emissions reductions.
Transportation activities must actually contribute to attainment and
maintenance of health-based air quality standards. /38/

Section § 176(c)(1) of the Clean Air Act has come to be known as the
\"general conformity\" provision. It prohibits the Federal Government
from funding, licensing, permitting, approving, or otherwise supporting
activities which do not conform to an approved SIP. ^/39/^ If the
federal activity does not conform, it will not be approved nor allowed
to proceed. /40/ A project can come to a screeching halt while it is
still in the planning stage, if it does not conform and cannot otherwise
offset or mitigate its emissions. In this respect, the conformity rule
is unlike the National Environmental Policy Act (NEPA), which merely
requires \"consideration\" of environmental impacts and allows federal
projects which will result in adverse environmental impacts to proceed
so long as all procedural hurdles are met. The conformity rule, on the
other hand, is a \"comply or die\" requirement. Without a conformity
finding, the federal project will not survive.

General conformity is intended to hold those with responsibility for a
project accountable for the project\'s resulting emissions. The ultimate
goal is to prevent actions that are supported by the Federal Government
from undermining efforts to achieve and maintain clean air in a cost
effective manner. /41/ General conformity is based on the principle that
the agency that sponsors or supports an activity is in the best position
to limit the adverse air quality impacts of that activity. /42/ It is
the belief of conformity proponents that \"if such steps to avoid
pollution are not taken, the result will be degraded air quality,
adverse public health consequences, and an increased burden on
regulatory agencies, and ultimately the public, to compensate for the
additional air pollution by imposing more rigorous controls on another
sector of society. \" /43/

III\. **GENERAL CONFORMITY AND THE BASE CLOSURE PROCESS**

**A. The Base Closure/Conformity Quagmire**

In August 1995, the Air Force issued its guidance to the field on
general conformity. /44/ Conformity can be a particularly burdensome
requirement where base closure is concerned. It \"reaches far beyond the
scope of normal air pollution permitting," /45/ and gathers together
emissions sources that are usually regulated under completely separate
Clean Air Act programs, i.e., mobile sources, stationary sources, and
aircraft emissions.

The conformity requirement can land the base closure process in an
unfortunate quagmire in that it hinges on the timing of approval of (and
the assumptions made in) the applicable SIP. ^/46/^ If the SIP\'s
baseline was premised on emissions from the period when an installation
was fully operational and emitting its peak level of pollutants, it will
have taken those emissions into account in making its emission reduction
plans. This scenario allows new civilian activities to emit up to that
baseline level before adversely affecting the SIP. If, however, the SIP
baseline emissions were measured during a period when the installation
was closed and inactive, civilian reuse can be severely hampered because
civilian emissions created by reuse of the base will have to be
subtracted elsewhere in the air district to ensure there will be no net
increase in overall emissions. /47/

A second base closure problem associated with DOD\'s conformity
determinations is the nature of the preliminary development plans
obtained by military installations from the local community at the start
of the NEPA environmental impact statement (EIS) process. /48/ The
community. sometimes overstates its estimation of future air pollution
and DOD relies upon the overstatement in making conformity
determinations associated with base closure, necessitating a later
revisiting of the conformity decision to ensure accuracy. ^/49/^ This is
not the only manner in which NEPA and conformity interrelate, at least
according to the First Circuit.

**B. Conservation Law Foundation, Inc. v. Department of the Air Force
/50/**

Until the summer of 1994, federal facilities operated under the
assumption that for federal projects, NEPA /51/ procedural requirements
and Clean Air Act § 176(c) conformity requirements were, at best,
distant cousins. Both had to be done, it was thought, but not
necessarily in concert. A federal district court judge in the state of
New Hampshire substantially changed that view in August 1994.

The 1988 Base Closure and Realignment Act ^/52/^ required the Secretary
of Defense to close or realign all military installations recommended
for such action by a twelve-person Commission on Base Realignment and
Closure established by the Secretary of Defense in May 1988. /53/ The
1988 Act specifically exempted many of the actions of the Commission and
Secretary of Defense from the requirements of NEPA. ^/54/^ It provided,
however, that NEPA would apply after the Secretary had made the decision
to close, or realign a particular military installation. The focus of
NEPA analysis was limited to \"the specific environmental impacts upon
the gaining and losing locations, and the mitigating measures available
to the Secretary.\" /55/ A civil action seeking judicial review was
required to be brought within sixty days of the date of the challenged
action. /56/

In December 1988, the Commission on Base Realignment and Closure
recommended to the Secretary of Defense that eighty-six military
installations be closed and that fifty-nine be partially closed or
realigned. /57/ One of the bases recommended for closure was Pease Air
Force Base (AFB), near Portsmouth and Newington, New Hampshire. The
Secretary accepted that recommendation on January 5, 1989. /^58/^ The
recommended closures and realignments were allowed to begin between
January 1990 and September 1991. /^59/^ Pease AFB was closed on March
31; 1991; /60/ and the Air Force began preparing an EIS to evaluate
several proposals for the development and reuse of the base.

The Air Force prepared a draft EIS in February 1991 and a final EIS in
June 1991 analyzing the impacts of the transfer and redevelopment of the
base, /62/ The final EIS evaluated the air quality impact of the
transfer and redevelopment of Pease AFB and concluded that such activity
would not result in the violation of the NAAQS or any state air quality
standards. It attributed the region\'s existing ozone nonattainment
status to the densely populated areas lying to the south of the base,
but concluded that the proposed action would impact the state\'s ability
to achieve the ozone precursor reductions required by the 1990 Clean Air
Act Amendments. ^/63/^ The Air Force issued an initial Record of
Decision (ROD) in August 1991 and a supplemental ROD in April 1992. /64/

In March 1992, the Conservation Law Foundation (CLF) filed a citizen\'s
suit pursuant to Clean Air Act § 304 challenging the actions of EPA and
the United States Air Force in connection with the disposal and reuse of
Pease AFB.

Specifically, CLF alleged violations of NEPA and the Clean Air Act. The
Pease Development Authority (PDA) - a special purpose subdivision of the
State of New Hampshire and the transferee of the Pease AFB property -
moved to intervene as a defendant in this case in April 1992. /^65/^

The town of Newington then filed a separate lawsuit against the Air
Force, PDA, and EPA in June 1992, /66/ alleging violations of NEPA, the
Clean Air Act, the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA). /67/ (The federal defendants will hereafter
be collectively referred to as \"the Air Force.\") The cases were
consolidated during the course of litigation. ^/68/^

Briefly stated, CLF alleged that the Air Force violated the Clean Air
Act\'s conformity provision by: (a) Supporting a project that failed to
conform to the purpose of the New Hampshire SIP; (b) Supporting a
project that failed to conform to the purpose of the Maine SIP; (c)
Supporting a project that violated the purpose of the New Hampshire SIP
through an increase in the severity and frequency of violations of the
carbon monoxide standard; (d) Proposing mitigation measures that, in
essence, would \"exempt\" the Air Force from compliance with the Clean
Air Act and put the compliance burden on the state instead; (e)
Conducting an inadequate air analysis to form the basis for the
conformity determination; and (f) Having an inadequate basis for making
a conformity determination. /69/

According to one commentator, the crux of CLF\'s argument was really
that Clean Air Act § 176(c) created a \"substantive EIS.\" /70/ A normal
NEPA EIS is procedural, in that it does not require a specific result -
it merely requires that the environmental impacts of a proposed action
be communicated to the federal agency\'s decision maker. Conversely, the
conformity rule absolutely prohibits federal agencies from making
decisions that adversely impact air pollution efforts. The CLF believed
the two had to work in tandem - the agency could not make a procedural
decision to go forward under NEPA without doing its substantive
conformity determination first. /71/

With respect to the Clean Air Act claims in this case, the Air Force and
PDA joined in defending against CLF\'s allegations. /72/ They argued
that CLF\'s Clean Air Act claims against the Air Force should be
dismissed in light of a prior ruling by the court\'\' and because the
court lacked subject matter jurisdiction. The Air Force and PDA also
argued that the defendants were entitled to summary judgment on CLF\'s
Clean Air Act claims. This assertion was subdivided into several
individual arguments that: (a) a conformity determination was not
required with respect to Maine\'s SIP; (b) the Air Force\'s approval of
the Pease redevelopment fully complied with the conformity provision;
(c) EPA complied with the conformity provision. They argued that the Air
Force\'s approval of the Pease redevelopment fully complied with the
conformity provision because (a) the Air Force conformity determination
was not untimely; (b) The Air Force reasonably concluded that the
project conformed to the purpose of the New Hampshire SIP; and (c) the
Air Force reasonably concluded that the project would not increase the
frequency or severity of any existing violation of the ozone NAAQS for
the relevant period; (d) the Air Force reasonably concluded that the
project would not delay attainment of the interim emission reduction
requirements or the ozone NAAQS; and (e) the Air Force reasonably
concluded that the project would not cause or contribute to a new
violation of the carbon monoxide NAAQS. Finally, the Air Force and PDA
argued that because the administrative record left no genuine dispute as
to any material fact and established that neither EPA nor the Air Force
violated § 176(c)(1) of the Clean Air Act, the court must grant summary
judgment to the defendants on CLF\'s Clean Air Act claims. ^/75/^

The Air Force\'s brief responded to CLF\'s NEPA and CERCLA allegations
made by CLF, arguing: (a) CLF was precluded from maintaining its NEPA
action because Congress strictly limited judicial review or agency
action in the base closure and realignment process; ^/76/^ (b) the
federal defendants fully complied with the requirements of NEPA; /77/
(c) ministerial acts do not require NEPA compliance; /78/ the Air
Force\'s leasing of the base to the PDA fully complied with CERCLA §
120(h); /^79/^ and (e) CLF did not satisfy the prerequisites for
obtaining the extraordinary relief of preliminary injunctive relief.
/80/

The court found that the procedures followed by the Air Force in issuing
its conformity determination satisfied the procedural requirements of
the Clean Air Act. /81/ On the substantive issues, the court found that
the Air Force properly determined conformity with respect to the New
Hampshire SIP and was not required to consider conformity with respect
to Maine\'s SIP. /82/ The court also found that the timing of the
conformity determination complied with Clean Air Act § 176(c). /83/
Although it would seem from the court\'s decision on the Clean Air Act
allegations that the Air Force \"did everything right\" with respect to
conformity, the NEPA portion of the court\'s decision provided a
surprise for the Air Force.

The CLF complaint alleged the Air Force violated NEPA in that the final
EIS\'s air quality analysis was inadequate in several respects.
Specifically, it was alleged to be inadequate because: (a) it failed to
address the full scope of environmental costs and benefits relative to
ozone precursor emissions; (b) it violated NEPA\'s public disclosure
requirements by failing to include a discussion of a July 30, 1991
carbon monoxide study; (c) it failed to adequately address the ozone
impact on the State of Maine; and (d) it failed to adequately discuss
air mitigation measures. ^/84/^

The CLF also claimed that the failure of the Air Force and EPA to
circulate a Memorandum of Understanding (MOU) /85/ - entered into by
EPA, the state, and the PDA - constituted a violation of the NEPA public
disclosure requirements because the MOU contained discussion of issues
which underlay the EIS decision. 16 Finally, the CLF alleged the Air
Force\'s decision not to issue a supplemental EIS was unreasonable under
the circumstances. /87/

The court began its NEPA analysis by deciding that the 1988 Base Closure
and Realignment Act did not bar the CLF\'s NEPA claims as alleged by the
Air Force. It held that the sixty day limit on NEPA judicial challenges
to acts or omissions by the Secretary of Defense \"was established to
frustrate attempts to use NEPA as a means to delay base closures, not to
prohibit challenges to environmental decisions made subsequent to the
closure and realignment of a base.\" /88/ Thus, matters arising after
the decision to close or realign and relating to the disposal or reuse
of an installation are not subject to the sixty day limit. Because the
CLF was not challenging the closure of the base but rather the
development plans following the closure decision, the time limit was
deemed inapplicable.

With respect to the CLF\'s other NEPA issues, the court noted that while
it had found that the Air Force had satisfied the conformity provision
of the Clean Air Act, the issue before it at this juncture was \"whether
that conformity determination satisfied the procedural requirements of
NEPA.\" /^89/^ The court held that in several respects it did not. The
court held that the Air Force violated NEPA by failing to prepare a
supplemental EIS after conducting a conformity analysis and developing
conformity information after issuing the final EIS. The court decided
that \"\[t\]he methods by which the \[Air Force\] chose to conform to
the Clean Air Act should have been the subject of a \[s\]upplemental
EIS.\" /90/ This was so, it decided, because the CEQ\'s NEPA regulations
specifically provide for the issuance of a supplemental EIS \"where
significant new circumstances arise or new information becomes
available,\" ^/91/^ and because NEPA\'s public disclosure requirements
mandate that an EIS must detail all relevant environmental information
prior to a decision. /92/

The \"new information\" in this case was data concerning conformity.
\"The decisions made regarding the conformity of the project to the
Clean Air Act amendments followed the EIS process and thus were never
subject to the \[sic\] public comment,\" noted the court. ^/93/^ The Air
Force had ultimately decided in finding that the Pease project conformed
to the New Hampshire SIP that the project would not prevent the state
from meeting mandated interim hydrocarbon emission reductions. During
the EIS process, however, it appeared that the opposite was true.

The CLF submitted comments to the draft EIS specifically addressing
Clean Air Act compliance and asking the Air Force to address air quality
issues in the final EIS. ^/94/^ Comments submitted by EPA to the draft
and final EISs were \"highly critical\" of the Air Force\'s air quality
analysis. ^/95/^ The EPA did not believe the project would conform.
Indeed, the Air Force\'s final EIS concluded that while the project was
not expected to generate any NAAQS violations, the \"proposed action
will impact the \[s\]tate\'s plans to achieve federally mandated
reductions of ozone precursor pollutant reductions\" mandated by the
1990 Clean Air Act Amendments. ^/96/^ In other words, the project did
not conform.

Following the EIS process, EPA\'s air quality concerns were placated by
an August 1991 PDA/EPA/state Memorandum of Understanding (MOU) which
contained mitigation measures - including carbon monoxide monitoring and
an assurance that hydrocarbon emissions would not exceed 3.3 tons per
day - designed to bring the Pease project into Clean Air Act compliance.
/97/ Had it not been for the addition of the MOU\'s mitigation measures,
it is doubtful the project - as it stood- would have conformed. The EPA
suggested the MOU be appended to the project\'s Record of Decision (ROD)
to ensure the mitigation measures would be implemented. The Air Force
agreed to do so, \"thereby alleviating the Clean Air Act conformity
concerns.\" /^98/^ The initial ROD was issued on August 20, 1991. /^99/^
The EPA had noted in its August 14, 1991 comments to the final EIS,
however, that while incorporating the MOU would resolve the Clean Air
Act issues, it would not satisfy the Air Force\'s obligation under NEPA
to disclose for public review in the EIS all \"critical and relevant
information on impacts and mitigation,\" /100/ namely, the conformity
determination information.

On March 20, 1992, the Air Force issued a Memorandum for the Record
(MFR) to update the conformity determination in the ROD with newly
obtained information - a letter of assurance from the state governor and
a \"certification\" from the New Hampshire Department of Environmental
Services (NHDES) Commissioner attesting that the Pease project did
indeed conform to the state SIP.\' /101/ The MFR \"referred to the MOU
as the basis of the conformity determination in the ROD,\" cited the
MOD\'s requirements, and stated that those requirements would control
emissions until the state issued a revised EPA-approved ~SIP.\ /~102/

In sum, the final EIS\'s conclusion regarding air quality impacts (and
hence, conformity) differed substantially from the information contained
in the ROD and its appended MOU. The Air Force did not issue a
supplemental EIS in connection with this changed information despite
EPA\'s opinion that NEPA required it. This ill-timed and somewhat
convoluted series of events led the court to conclude that NEPA had been
violated as it was unreasonable for the Air Force to rely on information
received subsequent to the preparation of the EIS in making a conformity
determination and it was unreasonable for the Air Force to fail to
include the new information it received subsequent to issuing the final
EIS or in a supplemental EIS.

The court also found that the final EIS was inadequate in that it failed
to address the air quality impacts of the project on the State of Maine.
Despite finding that the Air Force was not required to consider air
quality impacts upon states other than New Hampshire when making its
conformity determination under Clean Air Act § 176(c), the court decided
that the Council for Environment Quality (CEQ) regulations describing
the scope of an EIS required that the Air Force address such impacts on
the State of Maine. Specifically, the court found that NEPA requires
that acts significantly affecting the environment must be analyzed \"in
several contexts such as society as a whole (human, national), the
affected region, and affected interests and the locality:\" /103/
According to the court, the \"affected region\" for the Pease
redevelopment project included the State of Maine:

The fact that the area affected by the Pease development extends beyond
the boundaries of New Hampshire is not reason to ignore the air quality
implications in the final EIS. Both the plain language of the statute
and CEQ regulations mandate broader analysis than was contained in the
\[final\] EIS. /104/

The court also found the final EIS was inadequate in failing to analyze
air quality mitigation measures related to the reuse and redevelopment
of Pease AFB. The court agreed with CLF\'s contention that while NEPA
does not require the adoption of mitigation measures, it does require an
adequate examination of various mitigation alternatives in the final
EIS, whether or not such measures are ultimately adopted. ^/105/^ The
Air Force argued that (1) the final EIS was designed to address the
environmental impact of the disposal of the base, (2) that most of the
environmental effects would result from its ultimate reuse, not because
of the transfer itself and, (3) it was sufficient that the final EIS
merely identify the air quality mitigation measures and leave their
implementation to future owners of the base property. /106/ The court
disagreed with the Air Force\'s view that its role \"as a transferor
precludes further scrutiny of the project after its transfer.\" /107/
Instead, the Air Force should have addressed the environmental impact of
development and reuse of the base.

The court based this finding, at least in part, on the holding in
*Conservation Law Foundation, Inc. v. General Services Administration.*
^/108/^ In that case, the First Circuit held that the environmental
consequences surrounding the disposal of land by the General Services
Administration (GSA) was a proper subject of an EIS, and the fact that
the property was scheduled for transfer and redevelopment by a
nonfederal party did not relieve the GSA of responsibility under NEPA.
Just as in the GSA case, said the court, the Air Force was not relieved
of the responsibility for addressing the environmental impacts of
post-transfer development and reuse. As such, its final EIS inadequately
dealt with this issue by failing to analyze the various mitigation
measures relative to the base\'s development and reuse. ^/109/^

In the spring of 1995, CLF and the town of Newington appealed portions
of the district court\'s August 1994 decision in *Conservation Law
Foundation, Inc. v. Department of the Air Force.* They asked the court
of appeals to do the following: (a) order injunctive relief, including
nullification of prior federal approvals and leases; (b) prohibition of
future land transfers and development until a \"lawful\" supplemental
EIS is completed; (c) order new federal approvals and conformity
determinations informed by a lawful environmental analysis and in
compliance with the Clean Air Act and applicable EPA conformity
regulations; (d) require the Air Force and the Federal Aviation
Administration (FAA) to prepare an adequate supplemental EIS; /^110/^
and (e) hold that the Air Force and the FAA violated NEPA by issuing
Pease approvals based upon an inadequate EIS. /111/

The CLF and the town of Newington asked for sweeping injunctive relief
which would both nullify decisions made by the Air Force and the FAA in
1991-92 concerning the reuse of land on Pease AFB and oust the PDA and
its sublessees from portions of the base that PDA began leasing from the
Air Force in April 1992. /112/

The government did not appeal the NEPA or Clean Air Act portions of the
district court\'s decision. /113/ In its response to the CLF appeal, the
government sought primarily to preserve the denial of injunctive relief
in favor of CLF and to ensure upholding of the district court\'s finding
that the Air Force complied with the Clean Air Act\'s conformity
provision. /114/ It was particularly important to the Air Force that the
Clean Air Act portion of the district court\'s decision be upheld. This
was *so* because it was the *first* and to date, the only judicial
finding that the Air Force is correctly implementing Clean Air Act Sec.
176(c). Such a holding could become critical to the Air Force\'s general
conformity compliance program if recent challenges to EPA\'s general
conformity regulation, discussed in the next section of this article,
are successful. The holding would serve as a justifiable basis for
continuing to do conformity determinations in the same manner as at
Pease. Oral arguments on the appeal in the case, now styled
*Conservation Law Foundation,* Inc. v. FAA, were heard during the early
summer of 1995.

In April 1996, the U.S. Court of Appeals for the First Circuit held that
the federal agencies in this case did not act arbitrarily or
capriciously in making the determination that the plan to convert Pease
AFB to civilian use conformed to the New Hampshire SIP^.\ /115/^ This
was so because (1) completing a satisfactory air quality analysis under
NEPA was not a prerequisite to making a viable conformity
determination,\' /116/ and (2) the Air Force, FAA, and EPA made
conformity determinations that complied with the statutory conformity
requirements. /117/ Additionally, the court refused to overturn the
district court\'s denial of injunctive relief on the plaintiffs\' NEPA
claim, /118/ and reversed the lower court\'s finding that the federal
defendants had violated CERCLA. /119/

In short, the First Circuit\'s decision represented a victory for the
Air Force and the other federal agencies, as well as validation that
they were approaching conformity determinations in a way that made sense
and was reasonable.

**IV. THE FUTURE OF CONFORMITY**

**A. Litigation Challenging the General Conformity Rule**

The enactment of complex environmental laws frequently brings litigation
as the regulated community seeks to limit or, at a minimum, more clearly
define the scope of its new responsibilities. Conformity has been no
different in this regard, even though its regulated community, the
Federal Government, is somewhat smaller than those who are typically
affected by changes in air pollution control laws. Two recent lawsuits
brought by environmental groups against EPA seek to broaden the \'scope
of general conformity applicability by adding the conformity requirement
to attainment and PSD areas and eliminating the various exemptions EPA
included in the final general conformity regulation.

***B. Environmental Defense Fund v. Browner:***

**Conformity Requirements for Attainment and PSD Areas?**

In the EPA General Conformity Final Rule, EPA interpreted the conformity
requirement as being mandatory only for nonattainment areas, although it
noted that \"EPA continues to believe that the statute is ambiguous and
that it provides EPA discretionary authority to apply these general
conformity procedures to both attainment and nonattainment areas.\"
/120/ The Environmental Defense Fund (EDF) and the Sierra Club, among
others, disagreed with EPA on this point and brought a citizen suit
against the agency in the Federal District Court for the Northern
District of California. /121/

The plaintiffs sought to compel EPA to promulgate conformity regulations
for attainment and unclassifiable areas - areas not covered by the
General Conformity Rule. /122/ According to the plaintiffs, the language
of § 176(c)(1) \"unambiguously means that attainment areas should be
subject to conformity analysis.\" /123/ This is so, they argued to the
court, because § 176(c)(1)(B)(i) defines conforming activities as those
which will not \"cause or contribute to any new violation of any
standard in any area.\" /124/ The plain reading of \"in any area\" must
necessarily include attainment and unclassifiable areas, according to
the plaintiffs. Moreover, a \"new violation,\" by definition, can only
refer to a violation of NAAQS in an area designated as being in
attainment for a particular pollutant. /125/ This must be the case, the
plaintiffs argued, because \"\[I\]f an area is already designated
nonattainment for any one pollutant, a worsening of pollutant levels
would not constitute a \`new\' violation.\" /126/

The EPA argued that the meaning of § 176(c) is ambiguous because of its
placement within Subpart l, \"Nonattainment Areas in General\" of Part
D, \"Plan Requirements for Nonattainment Areas,\" rather than within
Part C, \"Prevention of Deterioration of Air Quality,\" of the Clean Air
Act. /127/ EPA argued that because of the ambiguity involved, the court
should look to a series of cases decided by the Supreme Court which
\"recognized that titles can be useful aids in resolving ambiguity and
discerning congressional intent.\" /128/ Additionally, said EPA, other
portions of § 176 refer specifically to nonattainment areas, and
therefore illustrate the range of the entire section. /129/ In other
words, where Congress meant to include nonattainment and/or
unclassifiable areas, it did so specifically, according to EPA.

Judge Thelton E. Henderson of the U.S. District Court for the Northern
District of California sided with the plaintiffs. \"In this case, the
language of §176(c) plainly embraces all geographic areas, including
attainment and unclassifiable areas, as well as nonattainment and
maintenance areas,\" held the court. /130/ The court believed that the
legislative history behind § 176(c) \"suggests that all areas should be
subject to conformity analysis.\" /131/ H~e~ also held that Congress, in
effect, ratified an earlier EPA interpretation of § 176(c) - in which
the conformity requirement applied everywhere there was a SIP - by
reenacting that provision without change. /132/ The judge, therefore,
ordered EPA to promulgate final regulations containing criteria and
procedures by which the conformity of federally supported activities
other than transportation plans, programs and projects will be
determined in every area subject to an implementation plan that is not
covered by the final General Conformity Rule published on November 30,
1993. /133/

***C. Environmental Defense Fund, Inc v U.S. EPA:***

**Challenging the Underpinnings of the General Conformity Rule**

In January 1994, the EDF, the Sierra Club, the Natural Resources Defense
Council, Inc. (NRDC), the CLF, the Oregon Environmental Council, the
Delaware Valley Citizen\'s Council for Clean Air, the Institute for
Transportation and the Environment, and the South Coast Air Quality
Management District filed citizen suits in the District of Columbia
Court of Appeals against EPA and its Administrator, Carol Browner, and
DOT and its Secretary, Frederico Pena, challenging the Transportation
Conformity Rule and the General Conformity Rule promulgated by EPA under
Clean Air Act § 176(c). /134/

The environmental petitioners (hereinafter collectively referred to as
\"EDF\") alleged EPA acted unlawfully, or arbitrarily and capriciously,
in:

1\. Substituting compliance with NEPA for compliance with the
substantive air quality requirements of Clean Air Act § 176(c).

2\. Allowing approvals to be granted to actions that fail to conform to
the SIP, simply because they used to conform at some earlier time.

3\. Prohibiting pollution-reducing transportation control measures whose
implementation is required by the Clean Air Act, while allowing
implementation of pollution-neutral projects whose implementation is
optional.

4\. Allowing approval of transportation plans and programs that provide
for implementation of transportation control measures (TCMs) on
schedules that violate the implementation deadlines set forth in the
SIP.

5\. Failing to provide for timely implementation of TCMs that are not
federally fundable.

6\. Failing to require transportation plans and programs to contribute
to emission reductions during the interim period.

7\. Exempting nitrogen oxides from the transportation conformity rule.

8\. Exempting statewide transportation plans and programs from
conformity requirements.

9\. Exempting the emissions associated with non-highway and non-transit
projects from the emissions analysis conducted for transportation
programs and projects.

10\. Exempting non-highway and non-transit projects such as air, water
and rail from conformity requirements.

11\. Allowing federal agencies to grant approvals they know will
foreseeably cause new pollution violations and prolong existing one,
under the pretext that the agency has no \"continuing program
responsibility\" over the violations.

12\. Exempting certain actions from the General Conformity Rule on de
minimis grounds, even though no such exemption is authorized by the
Clean Air Act and even though EPA has failed to demonstrate that the
impact on air quality of the exempted actions - either individually or
cumulatively - is trivial.

13\. Allowing agencies to approve actions that fail to conform to the
SIP under the pretext that the state has promised to revise the ~plan.~
/135/

The general conformity issues raised by EDF can be broken down into
discrete areas - (1) the definition of when (and if) conformity
determinations must be made under the new rule, (2) exemptions for de
minimis levels of pollution and \"presumed to conform\" categories, (3)
federal approval of actions with emissions over which the agency will
have no \"continuing program responsibility,\" and (4) approval of
actions that fail to conform solely because a state has agreed to revise
the SIP in the future to achieve conformity. They will be discussed in
turn.

The EDF objects to the grandfathering provisions of the General
Conformity Rule, as we\]\] as to EPA\'s decision on the timing of
conformity determinations. The transitional or \"grandfather\"
provisions to which EDF objects are those that allow approvals of
actions where NEPA documentation was completed by January 31, 1994. EDF
alleges this grandfathering \"allow\[s\] past agency derelictions to be
further prolonged, and compliance with Congress\'s mandates to be
postponed yet again.\" /136/ The EDF argues that Clean Air Act § 176(c)
expressly mandates comprehensive coverage of al\] federal actions, and
that \"EPA is not free to narrow that coverage by administrative flat.\"
/137/ This is especially true, says EDF, where Congress explicitly
\"built a limited grandfather exemption into § 176(c)(3)(B)(i) ^/138/^
for certain transportation projects. The EPA may not supplement that
statutory exemption with others of its own making.\" /139/

The EDF also suggests that the grandfather provisions violate NEPA §
104, which provides that \"\[n\]othing in §§4332 or 4333 of this title
shall in any way affect the specific statutory obligations of any
Federal agency\... to comply

with criteria or standards of environmental quality.\" /140/ According
to EDF, \"\[i\]t would be difficult to imagine a clearer transgression
of this language than \[40 C.F.R.\] § 51.850(c)(1), which grants an
exemption from \[statutory\] conformity requirements based solely on
compliance with NEPA § 102 (i.e., 42 U.S.C. § 4332),\" ^/141/^

The EDF also argues that where federal support of actions had not yet
occurred as of the promulgation date of the General Conformity Rule,
such actions would have to meet the new rule rather than the old
standard - even where NEPA analysis had already been completed. Hence,
no project can be caught in \"mid-stream\" and no retroactivity problem
exists. /142/

Further to bolster its contentions, EDF argues that the use of the
present tense language in § 76(c) (i.e., prohibiting any federal action
that \"does not\" conform) means that conformity status cannot be
determined until the federal action actually occurs. /143/ In EDF\'s
view, this should preclude the legal ability of any federal action to
conform until the final federal step is taken.

In its responding brief, DOJ counters EDF\'s allegation in a number of
ways. First, EPA alleges that, regarding NEPA, EDF \"has confused two
distinct issues: (1) whether the federal action must comply with the
statutory requirement of conformity and (2) whether compliance must be
assessed in terms of the particular criteria and procedures established
by this new regulation. /144/ The EPA notes that 40 C.F.R. §
51.850(c)(1) must be read together with § 51.850(b). Read in concert,
they state:

\(b\) A Federal agency must make a determination that a Federal action
conforms to the applicable implementation plan in accordance with the
requirements of this subpart before the action is taken.

\(c\) Paragraph (b) of this section does not include Federal actions
where either:

\(1\) A \[NEPA\] analysis was completed as evidenced by a final \[EA\],
a final \[EISI or a finding of no significant impact (FONSI) that was
prepared prior to January 31, 1994. /145/

The regulation, argues the government, establishes completion of the
NEPA process as the factor for determining whether the newly-promulgated
conformity procedures and requirements, as opposed to the prior legal
standards, should be used to assess conformity, argues EPA. /146/ When
the conformity rule was promulgated, \"it was inevitable that . . . many
projects dependent on federal actions were well underway or even nearing
completion. Some of these projects might not prove viable under the new
criteria, even

though they satisfied the prior \[conformity\] standards.\" /147/
Therefore, EPA decided that a transition or grandfathering provision -
promulgated as § 51.850(c) - was needed because the General Conformity
Rule was an \"abrupt departure\" from prior practice. /^148/^

Because the pre-1990 Clean Air Act did not define or really explain
conformity, the government argues that federal agencies were accustomed
to evaluating conformity in the context of NEPA, and relied on there
being no specific procedural requirements beyond NEPA. /149/ The General
Conformity Rule established a \"very structured process that goes far
beyond the analysis done in conjunction with NEPA,\" argues EPA. /150/
Forcing ongoing projects to meet the new rule\'s substantive conformity
requirements would create uncertainty that could not have been
anticipated beforehand. Such uncertainty \"could threaten the viability
of projects where considerable resources already have been invested.\"
/151/

If the General Conformity Rule were applied as EDF suggests, asserts
EPA, it \"would automatically invalidate all analysis conducted under
previous legal standards.\" /152/ The EDF argument that retroactivity is
not an issue is \"implausible\" because the \"status of federal actions
or projects dependent on federal approval could be changed from
conforming to nonconforming simply by promulgation of the rule.\" /153/

The EPA responds to EDF\'s \"verb tense\" argument by asserting that the
EDF\'s proposed statutory construction:

would produce an absurd result. EDF would leave all conformity
determinations - whether done under previous standards or the conformity
rules at issue here - open to constant reevaluation\... If the standard
for conformity, the SIP, or any factor relative to a conformity
determination changed, the project could not receive the next approval
unless it was modified so as to conform under the new facts. For a
complicated project, this process would be repeated numerous times. Even
after years of progress, a project could suddenly be shut down because
of a change in the conformity standard shortly before completion,
thereby wasting the resources invested. ^/154/^

The EPA noted that the suggestion that Congress intended to create such
a scenario was rejected by the First Circuit in Conservation Law
Foundation v. Federal Highway Administration, a case which held that the
1990 Clean Air Act Amendments did not invalidate preexisting project
conformity determinations by requiring new ones. /^155/^ According to
the First Circuit, CLF\'s position would have resulted in \"a complete
halt of all ongoing projects regardless of how close to completion those
projects have become. We see no evidence in the Clean Air Act that
Congress intended such a result.\" /156/

The EPA also argues EDF has incorrectly characterized the timing portion
of the conformity regulations as creating \"exemptions\" from the
statutory requirement to conform.\"\' Rather, EPA asserts, the provision
mere\] establishes a \"grace period\" for projects that had not had a
conformity determination at the time the 1990 amendments were enacted.
\"It does not establish an exemption for the requirement of conformity,
but instead define the standard that will be used for assessing
conformity.\" /158/

The EDF also challenged the General Conformity Rule\'s de minimis
thresholds and its EPA-specified categories of activities that are
presumed t conform. EDF argues that carving out these exemptions
violates the Clean A Act because it allows some activities to proceed
\"no matter how large emissions from each individual action may actually
be, or how many such actions ma occur in a given polluted area.^\"\'59^
Just as individual components of the same action can combine to produce
air quality standards, EDF argues, air quality impacts of many small
actions can do so as well. \"\[T\]he public\'s lungs,\" the state,
\"will not care whether the pollution emanates from many small sources c
a few big ones.\" /160/

The EDF calls EPA\'s decision to create these exemptions a impermissible
interpreting of general conformity by applying it to \"major sources\"
only. Congress, EDF argues, knew exactly how to limit the applicability
of a Clean Air Act requirement to \"major sources\" if it wished to do
so, and it did not in § 176(c)(1). /161/

The purpose of § 176(c), says EPA, is to make certain that activities c
the Federal Government do not prevent attainment of the NAAQS by failing
to conform to the applicable SIP. This purpose can be achieved without
applying the General Conformity Rule\'s burdensome procedural
requirements activities that involve little or no emissions of air
pollutants. ^/^162/ Prohibiting de minimis exemptions would violate the
principle of statutory construction that provisions are construed to
avoid absurd results, says EPA and it would be absurd to require
conformity determinations for activities it believes are obviously not
harmful to air quality, such as advisory and consultative activities
such as legal counseling, or granting deposit or account insurance to
banking customers. /163/

EPA asserts that the authority to establish de minimis exceptions is
part of: the Agency\'s usual responsibility in carrying out a statutory
scheme. /164/ The de minimis doctrine is a means of interpreting the
statutory language, not judicially or administratively amending it, EPA
adds. ^/165/^ Finally, EPA argues that the EDF\'s challenge to its de
minimis exemption fails under the familiar two-prong test of Chevron
U.S.A., Inc. v. Natural Resources Defense C~ounci~l /166/ because the
scope of federal actions subject to conformity procedures under § 176(c)
is ambiguous, and EPA\'s de minimis exemption is reasonable. /167/ With
respect to the creation of tonnage thresholds, EPA argues that they were
the most reasonable choice EPA could make in order to avoid the absurd
result of requiring conformity determinations for every federal action,
no matter how inconsequential. /168/

The EDF did not contest the first portion of the § 51.852 definition of
\"indirect emissions\" - i.e., that the General Conformity Rule covers
emissions that \"f \[a\]re caused by the Federal action, but may occur
later in time and/or may be farther removed in distance from the action
itself but are still reasonably foreseeable.\" /169/ The EDF did
challenge the remainder of that definition - exempting emissions from
conformity review unless the federal agency can \"practicably control\"
them and will maintain control over them due to a \"continuing program
responsibility\" of the federal agency. To EDF this is another
\"impermissible\" rewriting of the broad language of § 176(c)(1). /170/

In deciding how to define \"indirect emissions,\" EPA concluded that
\"if the federal agency has no continuing program responsibility for a
project, then under the agency\'s authorizing statute, it has no means
of controlling future emissions associated with the project and no means
of enforcing any required mitigation measures.\" /171/ Including
mitigation measures in SIPS, EPA argued, \"would disrupt the balance
between state and federal agencies with respect to air quality
established by the \[Clean Air Act\].\" /172/

The EDF argues that the regulatory provision allowing nonconforming
federal actions to go forward solely because a state promises to revise
its SIP in the future to accommodate the action \"violates the
categorical mandate of § 176(c)(1) that conformity must be measured
using \`an implementation plan after it has been approved or promulgated
under § 7410 of this title'" /173/ The EPA\'s approach, they argue,
\"creates a risk that the promised SIP revision will be delayed past the
time when the \'budget-busting\' federally supported action begins
polluting - or that the revision will not be submitted at all, or will
be submitted in an inadequate, non-approvable form.\" /174/

In other words, EDF argues a promise cannot substitute for conformity.

On this point, EPA argues against EDF on both procedural and substantive
grounds. Procedurally, EPA asserts that EDF is precluded from raising
this argument before the court because it failed to do so at any earlier
point in the administrative record of the case. /175/

Substantively, EPA argues that even if the court reaches this issue, EDF
is wrong because a state\'s commitment to revise a SIP to accommodate a
project is fully enforceable by EPA, which has authority to impose
sanctions under § 179. /^176/^ This provision was intended to account
for the time delay inherent in a SIP revision, says EPA. It would make
little sense to require conformity to a SIP undergoing revision when it
will be revised before the emissions from the proposed federal action
will actually occur. /177/

The EPA points out that a state\'s SIP revision commitment must satisfy
several specific requirements, including, among others, requirements to
identify (1) a specific schedule for adoption and submittal of the SIP
revision and (2) specific measures to be incorporated into the SIP to
reduce area emissions below the SIP\'s emissions budgets. /178/ The
Agency believes it wields an effective hammer to ensure the state\'s
commitment to revise the SIP is fully carried out.

On April 19, 1996, the United States Court of Appeals for the District
of Columbia decided Environmental Defense Fund, Inca v. Environmental
Protection Agency. /179/ Although the court noted that in some instances
the environmental groups\' interpretation of the conformity provisions
was reasonable, it upheld EPA\'s general and transportation conformity
regulations. The court held that the EPA, as the agency authorized to
interpret and enforce the Clean Air Act, acted reasonably in
interpreting the ambiguous statutory language of section 176(c)(1).
/180/

Regarding the various conformity issues raised by the environmental
groups, the court held that the grandfather clauses included in the
EPA\'s regulations were reasonable because the Clean Air vests in EPA
the discretion to set the appropriate frequency for conformity
determinations. So long as, the frequency is not longer than every three
years, EPA\'s regulation could not be said to have been unreasonable.
/181/ Although the terms of the Clean Air Act prohibit the Federal
Government from engaging in \"any activity\" that is not in conformity,
the court held that Congress was not so rigid as to mean literally
\"any\" activity. Rather, the court held it was reasonable for EPA to
interpret this provision to mean any activity that is likely to
interfere with the attainment goals of a SIP - i.e., major federal
actions and lesser actions that could still produce a regionally
significant level of emissions. /182/ Because agencies should to
consider both direct and indirect emissions in making their conformity
determinations, the court had to decide whether EPA had reasonably
defined \"indirect emissions.\" Section 176(c)(1) prohibits the Federal
Government from supporting in any way activities that do not conform.
The court held that support is an elastic term, and that EPA acted
reasonably when it focused on the extent to which federal agencies have
continuing program responsibilities and whether they can practicably
control emissions from their own and other parties\' activities. /183/
Finally, the court recognized that if the literal terms of the statute
were imposed upon agencies, no federal action would be able to proceed
until a full-fledged SIP revision could be developed, submitted and
approved. The result of such an interpretation would stymie the process
of state and federal cooperation envisioned by the \'Clean Air Act\'s
conformity provisions and the integrated planning process for which they
were designed. /184/

**V. CONCLUSION**

Conformity creates a completely new Clean Air Act compliance scenario
for DOD and other federal agencies. It brings together mobile and
stationary source emissions, and for good measure, tosses in sources not
generally regulated by EPA or states, such as aircraft emissions. The
litigation described in this article may change the playing field
considerably, and until the inevitable appeals are resolved, it will be
unclear to what extent general conformity will decide how DOD and other
federal agencies do business.

Combining NEPA and conformity as the court did in Conservation Law
Foundation, Inc. v. Department of the Air Force seems an unnecessary
step, as both processes will have to be completed correctly in any
event. Indeed,

melding the two could cause analytical difficulty, because NEPA analysis
is much more a \"worst case scenario\" approach than is conformity
analysis. Creation of the so-called \"substantive EIS\" may serve to do
little more than muddy the NEPA waters and cause confusion over what is
and is not \"mandatory\" under NEPA.

Arguing for application of the General Conformity Rule to attainment and
PSD areas is perhaps the most reasonable of the various environmental
groups\' arguments against the current version of the regulation.
Certainly it is reasonable to assume that new development at the edges
of nonattainment areas is likely to increase their size, causing more
and more encroachment into attainment and PSD areas. The statute\'s
language indicates federal agencies may not undertake actions that cause
or contribute to any new violation of any standard in any area. The EPA
believes this language is \"ambiguous\" as to whether conformity applies
only in nonattainment areas, /185/ but the court in Environmental
Defense Fund v. Browner held otherwise. Compare this with the court\'s
opinion in Conservation Law Foundation, Inc. v. Department of the Air
Force in which the judge noted \"the language in § 176(c) is ambiguous
at best. At the time the USAF was formulating its conformity
determination, there were no EPA conformity regulations available for
guidance. Accordingly, the USAF was guided solely by the statutory
language.\" /186/ With one federal court decision squarely requiring
conformity in attainment and PSD areas, and another indicating in dicta
that § 176(c) is indeed ambiguous, more decisions will be likely be
forthcoming as the circuits choose sides on this issue - that is, unless
a legislative rewording of the \"ambiguity\" makes clear Congress\' true
intent.

Strict constructionists are likely to agree with environmental groups
who charge that EPA should have adopted the \"inclusive\" definition of
indirect emissions - one that would exclude the language \"and which the
Federal agency has and will continue to maintain some authority to
control.\" This is the basis for one of the EDF\'s strongest arguments
in Environmental Defense Fund, Inc. v. EPA. /187/ Undeniably, there is
logic to EDF\'s position, but had EDF\'s arguments on this point prevail
in that case, we are likely to see Byzantine scenarios which will burden
both federal agencies and private entities in a variety of ways. /188/

Litigation over application of the conformity rule to a project would
assuredly follow any expansion of its current coverage. Many public and
private projects could be significantly delayed, and many may never go
forward even where their air quality impacts are insignificant. /189/
Without the EPA-imposed \"reasonableness\" approach, now blessed by the
D.C. Circuit as appropriate, the General Conformity Rule could reach out
and adversely affect a vast array of projects which have little or no
air pollution effects. While such projects may ultimately result in a
positive conformity finding, many might never get that far simply
because expending the resources to do a conformity determination would
be more expensive and troublesome than the project would be worth to its
initiator.

For example, currently EPA believes that participation by military
aircraft in air shows and fly-overs is an example of de minimis action
not requiring a conformity determination under the regulation. ^/190/^
Air shows draw thousands of community members to military installations
each year during open houses. They are a particularly popular public
relations tool used, among other things, to engender good will between
the base and its civilian neighbors. Fly-overs are similarly popular,
and are sometimes included in ceremonial activities such as building and
memorial dedications, change of command ceremonies, and military
funerals. Neither activity is a source of more than negligible
emissions. If the de minimis exemption is removed, as a result of
litigation or legislation, each time a military installation wished to
have an air show or perform a fly-over, it would have to undergo a
costly and time-consuming conformity determination. The unfortunate
outcome of such a requirement would likely be many fewer such events at
military installations each year.

A literal reading of the definition of \"federal action\" suggests that
almost every activity in which the military routinely engages - aircraft
and ground equipment operation, emergency deployment and mobilization,
or even procurement actions, for example - might raise independent and
repetitive conformity determination responsibilities in the absence of a
regulation limiting the scope of applicability. A federal action, says §
176(c), is \"any activity engaged in by a department. . .of the Federal
Government. . .other than activities related to transportation plans,
programs and projects. . . .\" /191/ The scope of the term \"any
activity\" is not further defined in the statute, leaving one to assume
that in the absence of EPA\'s specific exemptions and presumptions of
conformity, almost every action that has a potential effect on air
emissions, no matter how minimal, must undergo a complete conformity
determination before it can proceed. In an age of dwindling defense
dollars, such a result would be a poor allocation of money better spent
on more effective environmental remediation efforts. The D.C. Circuit
recognized in Environmental Defense P\'und v. Environmental Protection
Agency that such unfortunate and incongruous results would follow a
literal interpretation of \"any activity\" and wisely accorded EPA the
deference to interpret this language reasonably. Whether other circuits
will follow remains to be seen.

Unless one assumes that the actual goal of § 176(c) is simply to bring
all activities that emit any criteria pollutants to a grinding halt,
EPA\'s position that it is unreasonable to conclude that a federal
agency \"supports\" an activity by third persons over whom the agency
has no practicable control (or the emissions they generate) is the only
workable way in which to implement general conformity. Where federal
control over resulting emissions is minor or nonexistent, state and
local agencies must step forward to control the non-federal sources that
are the cause of the problem. /192/

It is unclear whether the current Congressional push to weaken federal
environmental laws will ultimately affect general conformity and its
application to DOD and other federal agencies. It is not unreasonable to
expect that if the environmental groups win on the litigation
battlefield, many private projects which require federal permits or
other federal approvals will grind to a halt if they cannot achieve a
positive conformity determination. When his happens often enough,
members of Congress will begin hearing the angry objections of private
business - perhaps the only influence they will feel obliged to respond
to on this issue if they wish to remain in office.

No matter what form the general conformity requirement eventually takes,
DOD can minimize delays and cost by good strategic planning when
designing and implementing a project. Effective incorporation of
emission reduction technology can help an installation qualify for a de
minimis exemption, should that exemption survive the current EDF legal
challenge.

Innovative thinking by those responsible for making the conformity
analyses will be invaluable, although perhaps potentially hard to find
until DOD becomes more familiar with conformity and all it requires.

\*Major Fall (B.S., Boston University; JD., Western New England College;
LL.M, The George Washington University) is assigned to the Environmental
Law Division, Headquarters Air Combat Command, Langley Air Force Base,
Virginia. She is member of the Massachusetts State Bar.

1 See Air Pollution Control Act of 1955, No. Pub. L. 84-145, 69 Stat.
322; Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392; Motor
Vehicle Air Pollution Control Act, Pub. L. No. 89-272, 79 Stat. 992;
Clean Air Act Amendments of 1966, Pub. L. No. 89-675, 80 Stat. 954; Air
Quality Act of 1967, Pub L. No. 90-148, 81 Stat. 485; Clean Air Act
Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676; Comprehensive
Health Manpower Training Act of 1971, Pub. L. No. 92-157, 85 Stat. 431;
Energy Supply and Environmental Coordination Act of 1974, Pub. L. No.
93-319, 88 Stat. 246; Clean Air Act Amendments of 1977, Pub. L. No.
95-95, 91 Stat. 686; Steel Industry Compliance Extension Act of 1981,
Pub L. No. 97-23, 95 Stat. 139; Clean Air Act Amendments of 1990, Pub.
L. 101-549, 104 Stat. 2399.

^2^ President Richard M. Nixon signed the Clean Air Act Amendments of
1970 on Dec. 31, 1970. Pub. L. No. 91-604, 84 Stat. 1676.

^3^ Title I of the 1970 Clean Air Act regulates stationary sources;
Title II regulates mobile sources; Title III contains the \"general
provisions\" of the Act, including its administration and
implementation, as well as judicial review and citizen suit provisions;
Title VI contains the Act\'s acid rain provisions; Title V sets forth
the operating permit program; and Title VI addresses stratospheric ozone
protection.

^4^ Clean Air Act § 109 directed EPA to establish national primary and
secondary ambient air quality standards for certain pollutants with
established criteria. Primary standards define levels of air quality
that are necessary, with an adequate margin of safety to protect the
public welfare. Secondary standards were to be set to protect the public
welfare from any known or anticipated adverse effects associated with an
air pollutant. 42 U.S.C. § 7409. Currently there are six pollutants for
which EPA has established NAAQS. These pollutants are carbon monoxide,
nitrogen oxide, lead, sulfur dioxide, ozone, and particulate matter. 40
C.F.R. § 50. See ARNOLD W. REITZE , JR., Air Pollution Control, 32
(1994); Catherine V. Greco, State Implementation Plans Under the 1990
Clean Air Act: Can New York Conform? 11 PACE ENVTL. L. REv. 869, 873
(1994).

5 Address by Senator Pete Domenici, reprinted in 19 Nat. Resources J.
475, 476 (July 1979).

^6^ REIZE, supra note 4, at 37.

7 Id.

As 1977 approached, not a single steel mill was in full compliance with
the \[Clean Air Act\]. Nearly 50 percent of the refineries, pulp mills,
and large commercial boilers were also not meeting \[Clean Air Act\]
requirements. The program to protect areas already having clean air was
bogged down by EPA\'s failure to implement the Prevention of Significant
Deterioration (PSD) program. At the same time, unemployment had grown to
nine percent, there was double digit inflation, and the nation was
struggling with the aftermath of the 1973 Arab oil embargo. Id.

8 TRANSPORTATION AND GENERAL CONFORMITY UNDER THE CLEAN AIR ACT: MODEL
RULES FOR STATE AND LOCAL AGENCIES, State and Territorial Air Pollution
Administrators/Association of Local Air Pollution Control Officials
(STAPPA/ALAPCO), June 1994, at 5 \[hereinafter STAPPA/ALAPCO\].

^9^ Raymond Takashi Swenson, Blowin\' in the Wind: The Impact of Air
Pollution Regulation on Redevelopment of Closed military Bases, FED.
FACILITIES ENVTL. J. 331, 333 (Autumn 1993) \[hereinafter Swenson\].

10 David Schoenbrod, Goals Statutes or Rules Statutes: The Case for the
Clean Air Act, 30 UCLA L. REv. 740, 745 (1983).

11 Id at 742.

^12^ Pub. L. No. 91-604, 1970 U.S.C.C.A.N. (84 Stat.) at 5356.

13 Clean Air Act § 110(a)(2)(B), 42 U.S.C. § 7410(a)(2)(B).

14 Pub. L. No. 91-605, 84 Stat. 1713 (codified at 23 U.S.C. § 109(j)
(1970)).

15 ARNOLD W. REITZE, JR., Air Pollution Control Law II, at 2 (1995)
\[hereinafter REIZE\], citing Yuhunke, Clean Air in Our Times? The
Amendments to Reform Transportation Planning in the Clean Air Act
Amendments of 1990, TRB Legal Workshop (July 23, 1991) \[hereinafter
Reitze II\].

16 Reitze 11, supra note 15, at 2, citing Environmental Quality, THE
FIRST ANNUAL REPORT of THE COUNCIL ON ENVIRONMENTAL QUALITY 62 (1970).
The rate of transportation-generated air pollution was thought by some
to have been as high as 60 % in 1970. See, e.g., Clean Air Act
Amendments of 1970, Pub. L. No. 91-604, 1970 U.S.C.C.A.N. (84 Stat.)
5361.

17 These requirements have been continued in the 1990 Clean Air Act
Amendments.

18 BUREAU OF NATIONAL AFFAIRS, THE CLEAN AIR ACT AMENDMENTS: BNA\'S
COMPREHENSIVE ANALYSIS of THE NEW LAW, 48 (1991)\[hereinafter BNA\].

19 Id. at 1.

20 Id

21 Id

22 Id. at 1-2.

23 Id. at 2.

24 Id. Pub.L. 101-549. See also President\'s Signature on Clean Air Act
Starts New Era of Pollution Control, Says EDF, U.S. NEWSWIRE, Nov. 15,
1990, at B5.

25 The Act has been called a \"sweeping collection of programs that
dwarfs previous environmental laws. Any one of the 1990 Amendments\'
five major titles would ordinarily be an act in itself.\" The Honorable
Henry A. Waxman, An Overview of the Clean Air Act Amendments of 1990, 21
ENVTL. L. 1721, 1724 (1991). The purpose of the 1990 Clean Air Act is to
\"protect and enhance the quality of the Nation\'s air resources so as
to promote the public health and welfare and the productive capacity of
its population.\" 42 U.S.C. § 7401(b)(1).

26 BNA, supra note 18, at 48.

^27^ 42 U.S.C. § 7506(c)(4)(A).

^28^ See Environmental Defense Fund, Inc. v. Carol M. Browner, D.C.
N.Calif, No. C-92-1636, U.S. Dist. LEXIS 2616 (Feb. 10, 1995) at 2
\[hereinafter EDF v. Browner\].

29 On EPA\'s motion, the deadline was extended until Nov. 15, 1993. Id.

30 58 Fed. Reg. 62188 (Nov. 16, 1993); 40 C.F.R. pt. 51, subpart T.

^31^ Determining Conformity of General Federal Actions to State or
Federal Implementation Plans; Final Rule, 58 Fed. Reg. 63214 (Nov. 30,
1994) \[hereinafter Final Rule\].

32 \"Nonattainment\" areas are those where the NAAQS have been violated
for a particular criteria pollutant. 42 U.S.C. § 7407(d)(1).
\"Maintenance\" areas, on the other hand, are those areas that were
designated nonattainment after the 1990 Clean Air Act amendments, but
subsequently determined to be in compliance with NAAQS and thus in
\"attainment.\" 40 C.F.R. § 51.392; 51 Fed. Reg. 62217.

33 \"Attainment areas\" already meet ambient air quality standards and
\"unclassifiable areas\" cannot be categorized as attainment or
nonattainment on the basis of available information. 42 U.S.C. §
7407(d)(1). EPA noted in the final conformity rule that it intended \"in
the near future\" to issue a supplemental notice of proposed rulemaking
to deal with conformity requirements for transportation related projects
in a limited category of attainment areas. See Final Rule, supra note
31, at 63214.

34 58 Fed. Reg. 62188.

35 40 C.F.R. pt. 51.

36 BNA, supra note 18, at 12.

37 Id. at 13.

^38^ Id. at 12.

39 Clean Air Act § 176(c)(1), 42 U.S.C. § 7506(c)(1).

40 \"A Federal agency must make a determination that a Federal action
conforms to the applicable implementation plan in accordance with the
requirements of this subpart before the action is taken.\" 40 C.F.R. §
93.150(b).

41 STAPPA/ALAPCO, supra note 8, at 141.

42 Id

43 Id

^44^ U.S. AIR FORCE CONFORMITY GUIDE, Directorate of Environmental
Quality, HQ USAF/CEV, Washington D.C. (Aug. 1995).

45 Swenson, supra note 9, at 333-34.

46 Id. at 334.

47 Id. This commentator noted that subtracting emissions elsewhere in
the air district can be quite expensive in areas that do not have
emission reduction credit (ERC) systems. In such areas, \"base
developers may need to locate compensating emission sources that can be
shut down, pay for that shutdown, and apply for special concurrence by
the air district\'s governing body that there will be no net increase in
emissions.\" Id.

48 Id

49 Id.

50 864 F.Supp. 265 (D. New Hamp. 1995)\[hereinafter CLF\].

51 National Environmental Policy Act 1969, Pub. L. No. 90-190, 83 Stat.
852 (codified at 42 U.S.C. §§ 4321-47 (1970)). A brief discussion of
NEPA is appropriate to assist the reader in understanding the court\'s
holding in this case. Enacted on January 1; 1970, NEPA was a watershed
event in environmental law. As the first modern environmental statute,
it was enacted to ensure that federal agencies consider the effect their
decisions will have on the environment. See Calvert Cliffs Coordinating
Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d
1109. 1113 (D.C. Cir. 1971). NEPA does not require an agency to come to
a specific (or even an environmentally sound) decision. It does not
impose substantive environmental obligations upon federal agencies. See,
e.g., Chelsea Neighborhood Ass\'n v. United States Postal Service, 516
F.2d 378, 384 (2d Cir. 1975) and Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 351 (1989). Insofar as federal agency compliance
efforts are concerned, the most important provision of NEPA is certainly
§102(2)(c), NEPA\'s \"action-forcing\" provision, which requires that a
\"detailed statement\" known as an Environmental Impact Statement (EIS)
be included in \"every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the
quality of the human environment.\" 42 U.S.C. §4332(2)(C). An EIS must
contain a detailed written statement concerning the environmental impact
of the proposed action. Id. Two purposes underlie the responsibility to
complete an EIS. First, it ensures the agency will put detailed
information on environmental impacts before the decision maker when he
or she decides what action to take. Robertson , 490 U.S. at 349. Second,
it ensures adequate public review and participation in the
decision-making process. Id. See also Boston v. Volpe, 464 F.2d 254,
257, (1st Cir. 1972). The NEPA process begins when the federal agency
decides its proposal qualifies as a \"major\" federal action under the
Act. The agency has three options - it may prepare an environmental
assessment (EA) to decide (1) whether an EIS must be done or (2) whether
a Finding of No Significant Impact (FONSI) can be made; it may simply go
ahead and prepare an EIS if the need for one is clear; or it may make a
categorical exclusion (CATEX) determination if the proposed action will
not individually or cumulatively have a significant effect on the human
environment. Courts review federal agency EISs to determine whether they
are \"adequate\" under NEPA. They conduct a \"substantial inquiry\" into
the agency decision to decide whether the agency took the requisite
\"hard look\" at the environmental issues. See, e.g., Kleppe v. Sierra
Club, 427 U.S. 390 (1976), Sierra Club v. United States Department of
Transportation, 753 F.2d 120 (D.C. Cir. 1985). The reviewing court is
not empowered to substitute its judgment for that of the agency. See
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971). So long as the agency has fulfilled its procedural duties under
NEPA and has taken the requisite \"hard look\" at the potential
environmental consequences of its proposed action, substantial deference
is due the agency\'s decisions. See, e.g., Baltimore Gas & Electric Co.
v. NRDC, 462 U.S. 87, 97 (1983); DiVosta Rentals, Inc. v. Lee, 488 F.2d
674, 678 (5th Cir. 1973); Grazing Field Farm v. Goldschmidt, 626 F.2d
1068, 1072 (1st Cir. 1980). The agency is not required to \"elevate
environmental concerns over other appropriate requirements.\"
Strycker\'s Bay Neighborhood Council Inc. v. Karlen, 444 U.S. 223,
227-28 (1980). Only when there has been a \"clear error of judgment\" by
the agency that deprives the agency\'s decision of a rational basis will
a court overturn the decision. National Wildlife Federation v. Marsh,
568 F.Supp. 985, 999 (D.D.C.1983).

52 Pub. L. No. 100-526.

^53^ Id. §§ 201(1), 201(2).

54 Id. §§ 204(c)(1)(A), 204(c)(1)(B). Exempted actions of the Commission
included selecting bases for closure or realignment; recommending bases
to receive functions from a military installation being closed or
realigned; and making its report to the Secretary of Defense or the
Congressional Committees. Exempted actions of the Secretary of Defense
included setting up the Commission, deciding on the Commission\'s
recommendations, selecting bases to receive functions from an
installation being closed or realigned, or transmitting the report to
the Congressional Committees. Id. In creating these exemptions, \"\[f he
conferees recognize\[d\] that the National Environmental Policy Act has
been used in some cases to delay and ultimately frustrate base closures,
and support the narrowing of its applicability for closures and
realignments under this act.\" H.R.CONG.REP. No. 101-1071, 100th Cong,
2d Sess. 23 (1988), reprinted in 1988 U. S. C. C.A.N. 3395 at 3403.

55 Id. §§ 204(c)(2) and (c)(3); H.R.CONG.REP. No. 1071, 100th Cong., 2d
Sess. 23 (1988), reprinted in 1988 U.S.C.C.A.N. 3395, 3403.

56 Id

57 Memorandum of the Federal Defendants in Support of Defendants\'
Cross-Motion for Summary Judgment and in Opposition to Plaintiffs\'
Motions for Summary Judgment, Conservation Law Foundation, Inc. v.
Dep\'t of the Air Force, No. C-92-156-L (U.S. Dist. Ct. NH 1994) at 1
\[hereinafter Federal Defendants\].

58 ~Id~

59 Id

60 CLF, supra note 50, at 265.

61 Id.

62 Id

63 Id at 270-71.

64 Id. at 271.

65 Id. at 272-73.

66 Id.

67 Id.

68 Id.

^69^1d. at 275. CLF also maintained one conformity allegation against
EPA, alleging it failed to make an independent conformity determination
as required by 42 U.S.C. § 7506(c)(1). The court granted summary
judgment if favor of EPA on this count, noting that there was \"ample
evidence in the record to support \[the\]\... contention that the EPA in
fact did make conformity findings.\" Id. at 276.

70 Swenson, supra note 9, at 334.

^71^ Id.

72 See Memorandum of Defendant Pease Development Authority in Support of
Motions for Summary Judgment and to Dismiss and in Opposition to Motions
of Conservation Law Foundation, Inc. and Town of Newington for Summary
Judgment (Clean Air Act Claims), Conservation Law Foundation, Inc. v.
Dep\'t of the Air Force, et al., Civil Action No. 1:92-CV-156-L
(Consolidated) \[hereinafter PDA Memorandum\]. PDA unsuccessfully argued
that the CLF\'s Clean Air Act claims against the Air Force should be
dismissed because CLF failed to state a claim and the court lacked
subject matter jurisdiction. PDA Memorandum at 4-9.

73 On Apr. 4, 1994, the court ruled that CLF had failed to state a claim
for relief against EPA under Clean Air Act § 304(a)(1), because CLF
failed to allege \"a specific requirement or provision of either the New
Hampshire or Maine \[SIPs\] which would be violated by the EPA\'s
support of the project.\" Id. at 4-5.

74 Id. at 4-9. On Apr. 4, 1994, the court ruled that it did have subject
matter jurisdiction over Clean Air Act claims against EPA under Clean
Air Act § 304(a)(2), which provides that a citizen suit may be filed
against the Administrator of EPA \"where there is alleged to be a
failure of the Administrator to perform any nondiscretionary act or duty
under the Act.\"

75 PDA Memorandum, supra note 72, at 4-38.

7^6^ This argument concerns the 60-day limit on lawsuits challenging
federal actions taken during closure or realignment. Draft Memorandum of
the Federal Defendants in Support of Defendants\' Cross-Motion for
Summary Judgment and in Opposition to Plaintiffs\' Motions for Summary
Judgment, Conservation Law Foundation, Inc. v. Dep\'t of the Air Force,
Civil Action No. C-92-156-L (Consolidated) \[hereinafter Federal
Defendants\' Draft Memorandum\] at 47-55.

77 Id. at 55-81.

78 Id. at 81-88.

7^9^ Id. at 88-94.

^80^ Id. at 94-98. In the First Circuit there are four prerequisites,
according to the Air Force brief. (1) plaintiffs will suffer irreparable
injury if the injunction is not granted; (2) such injury outweighs any
harm which granting injunctive relief would inflict on the defendant;
(3) plaintiff has exhibited a likelihood of success on the merits; and
(4) the public interest will not be adversely affected by the granting
of the injunction. See Planned Parenthood League v. Bellotti, 641 F.2d
1006, 1009 (1st Cir. 1981); see also Weinberger v. Romero-Barcelo, 456
U.S. 305, 312 (1982); Associated Builders and Contractors, Inc. v. MWRA,
935 F.2d 345, 350 (1st Cir. 1991); LeBeau v. Soirito, 703 F.2d 639, 642
(1st Cir. 1983).

81 Id. at 22.

82 Id. at 23, 30. CLF brought the Maine SIP into this case by arguing
that prohibiting violations of \"any standard in any area\" meant that
the Air Force was required to make conformity findings for any area
affected by the Pease AFB project, including the state of Maine. At the
time the Air Force was formulating its conformity determination, there
were no EPA conformity regulations available for guidance. This left the
Air Force with only the statutory language to guide it. PDA argued (and
the court agreed) that the conformity provision does not define what is
meant by \"any standard in any area\" and that the Air Force was correct
in construing that language to apply solely to the SIP of the state in
which the project was located, i.e., New Hampshire. Id. at 19-20.

83 Id. at 30.

^84^ Id. at 39-48.

^85^ EPA, PDA and the New Hampshire Department of Environmental Services
(NHDES) entered into an MOU in Aug. 1991. The MOU addressed EPA\'s air
quality concerns by requiring a surface transportation study, a traffic
model, a master transportation plan and a carbon monoxide analysis. The
MOU required that the PDA not undertake further development beyond the
level anticipated to generate 3.3 tons per day of hydrocarbon emissions
until EPA approved a revised SIP for New Hampshire. EPA believed the MOU
provided a framework within which the Pease AFB project could proceed in
compliance with the Clean Air Act. Id. at 4.

86 Id. at 48.

87 Id. The town of Newington additionally alleged that the discussion in
the final EIS of the impact of the Pease Development on the surrounding
wetlands was inadequate. Id. at 51. This issue, as well as the CERCLA
aspect of the decision, is beyond the scope of this article and will not
be discussed further.

88 Id. at 37.

^89^1d. at 39. The court also held it was \"obligated to consider the
entire administrative record and not only the D\[raft\] EIS, F\[inal\]
EIS and the accompanying documents.\" Id.

90 Id. at 41.

91 Id.

92 Id. at 40.

93 Id.

94 Id. at 41. The Air Force asserted that in response to CLF\'s comments
it conducted further air quality analysis and included the information
in the final EIS. Id.

95 Id at 39.

^96^ Id. at 40-41.

97 See infra note 109 and accompanying text.

98 CLF, supra note 50, at 284.

^99^ Id. at 271. A supplemental ROD was issued on Apr. 13, 1992, to
address issues regarding transfer of certain parcels of land. Id. at
277.

100 ~Id~

101 Id. at 272.

102 Id. The MFR also discussed the rationale for the Air Force\'s belief
that the Pease redevelopment project would not violate either the
existing or future SIPs. Id.

^103^ Id. at 286, citing 40 C.F.R. § 1508.27(a).

104 Id.

105 Id at 287.

106 Id.

107 Id

108 707 F.2d 626, 633 (1st Cir. 1983).

109 CLF, supra note 50, at 289. To give effect to its NEPA ruling, the
court ordered the Air Force to augment its June 1991 final EIS to
provide (1) additional analysis of how redevelopment will affect
wetlands on and around the base and air quality in Maine, and of
measures that could be taken to mitigate environmental impacts, and (2)
notice to the public of post-final EIS developments, including the Aug.
1991 MOU limiting air emissions from Pease redevelopment and the
decision to give PDA immediate access to portions of the base under a
long term lease and contract of conveyance. This information was to be
made public in a supplemental EIS to be completed by Aug. 29, 1995. The
court refused to enter a broader injunction stopping PDA\'s
redevelopment activity, holding that it was \"not convinced under the
circumstances that the plaintiffs \[had\] demonstrated the irreparable
harm necessary for granting a preliminary injunction.\" Id.

110 This is an odd and seemingly unnecessary allegation, in that the Air
Force was already preparing a supplemental EIS in compliance with the
district court\'s order.

111 Original Brief for Petitioner-Appellant Conservation Law Foundation,
Inc. at 17-48, Mar. 15, 1995.

112 Response Brief for Federal Appellees-Respondents/Cross-Appellants at

1, May 1995 \[hereinafter Government Response Brief\] CLF and the Town
of Newington also asserts that the district court abused its discretion
when it declined to impose an injunction halting future transfers and
redevelopment efforts at Pease after finding that the Air Force had
violated CERCLA § 120(h)(3) and NEPA § 102(2)(C). They also contend that
the Air Force and EPA violated Clean Air Act § 176(c)(1), and that the
FAA did so as well when it approved the PDA\'s plan for establishment of
a civilian airport on the former base. Id. at 1-2.

113 Opening Brief for the Federal Appellees-Respondents/Cross-appellants
at 3, Mar. 1995.

114 Government Response Brief, supra note 76, at 24-46. The CERCLA
portions of the government\'s response to this appeal will not be
discussed herein.

115 Conservation Law Foundation, Inc., v. James Busey, Administrator,
Federal Aviation Administration, et. al, 42 ERC 1385 (1st Cir.
Apr.4,1996) at 1393-1400 \[hereinafter CLF Appeal\].

116 Id at 1393-94. The court held that had the federal agencies relied
entirely on the information in the final EIS as the basis for their
conformity determinations, and if these analyses had been found by the
district court to be deficient under NEPA on substantive grounds which
affected the conformity analysis required by the CAA, the conformity
analysis would also likely have been deficient. The agencies, however,
relied for their conformity determination on information and analyses
which had not been included for public comment in either the final EIS
or a supplemental EIS. While this failure was a NEPA violation;
\"\[b\]ecause such public review and comment are not required under the
conformity provision of the CAA, the NEPA violation did not affect the
merits of the conformity determination. . .\" according to the court.
Id. at 1394.

117 Id. at 1395-1400. The court noted that no regulations interpreting
42 U.S.C. § 7506(c)(1) had been promulgated when the agencies made the
conformity determinations at issue, having \"only the words of the
statute to guide them.\" Id. at 1395. Also, because \"a conformity
determination is inherently fact-intensive. . . what constitutes
conformity is a function of the unique characteristics of the project
being approved.\" Id. According to the First Circuit,

Section 7506(c)(1) sets forth its own standards for evaluating
conformity. Noting in that section or elsewhere in the CAA requires the
information on which a conformity determination is based to have been
subject to review, analysis, or public comment pursuant to NEPA.
Moreover, regulations issued by the EPA in 1993 prescribing procedures
and criteria for conformity determinations suggest no connection between
NEPA and CAA compliance.

Id. at 1393.

118 Id. at 1403. Plaintiffs argued that failure to grant injunctive
relief would result in irreparable harm due to the continuing
development of Pease AFB for civilian use. The court decided that the
plaintiffs had simply waited too long to make this argument, because
significant commitments were made to the Pease project by the time CLF
and the Town of Newington moved to amend their complaint to reflect a
request for injunction in addition to the substantive claims made. \"If
harm was done, it largely had been done, not by the court\'s denial of
injunctive relief, but by the plaintiffs\' failure to timely seek it,\"
the First Circuit held. Id.

119 Id. at 1400-01. As noted above, the CERCLA aspects of this case are
not addressed in this article.

120 Final Rule, supra note 31, at 63214.

121 Environmental Defense Fund v. Browner, No. C-92-1636, 1995 U.S.
Dist. LEXIS 2616 (D.C. N.Calif. Feb. 10, 1995).

122 Id. at 2. The suit was brought pursuant to 42 U.S.C. § 7604(a)(2).

123 Id. at 7.

124 Id., citing 42 U.S.C. § 7506(c)(1)(B)(i) (emphasis added).

125 Id. at 7-8.

126 Id. at 8. Indeed, \"to cause a location or region to exceed a
standard more often or to cause a violation at a greater concentration
that previously existed and/or would otherwise exist during the future
period in question\" is explicitly defined as increasing the \"frequency
or severity\" of a violation in the Final Rule, noted the court. Id.

127 Id. at 10.

128 Id. at 11, citing Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989),
which in turn cited Federal Trade Commission v. Mandel Brothers, Inc.,
359 U.S. 385-388-89 (1959).

129 Id. at 9. EPA cited to 42 U.S.C. §§ 7506(c)(2)(D), (c)(3)(A)(iii),
and (c)(3)(B)(iii) in support of this argument.

130 Environmental Defense Fund v. Browner, 1995 U.S. LEXIS 2616 at \*26.

131 Id. The legislative history to which the court refers is a
congressional reference to a 1975 EPA policy statement contained in its
\"Guidelines for Analysis of Consistency Between Transportation and Air
Quality Plans and Programs\" \[hereinafter Guidelines\]. The Guidelines
were issued jointly by EPA with the FHWA to help carry out the
requirement of § 109(j) of the Federal Aid Highway Act, 23 U.S.C. §
109(j), that highways be \"consistent with any state implementation
plan. The Guidelines required \"consistency\" even for areas with no
NAAQS violations. In congressional debate about the 1990 Clean Air Act
amendments, Senator Baucus, the sponsor and manager or the Senate bill
that became the basis of the 1990 conformity amendments and the chair of
the subcommittee that reported the bill, explained his understanding of
the 1977 amendments to the Senate. He commented that the \"intent of the
\`conformity\' provision added to the Clean Air Act in 1977 was to give
clear legislative authority for the application of air quality criteria
to the review and approval of transportation plans and well as projects
in accordance with the DOT/EPA joint 1975 guidance.\" 135 LONG. REC. S
16972, cot. 2 (daily ed. Oct. 27, 1990). Judge Henderson indicated in
his decision that this language in the legislative history shows that
\"Congress acknowledged it drew on the Guidelines - which required
consistency even for areas with no NAAQS violations - in crafting
section (c)(1)(B)\'s conformity tests. It is especially telling that
Congress chose to follow the language of the Guidelines\' consistency
criteria so closely,\" the court noted. Id. at 21.

132 Id. at 26. The judge apparently agreed with the plaintiffs that EPA
had originally interpreted the conformity requirement as being
applicable in attainment areas. He noted that the initial EPA statement
of policy applying the conformity requirement to attainment areas came
in the form of the 1975 Guidelines, and that EPA reiterated this
position in a 1988 letter to the Administrator of the FHWA, saying that
if plans or projects \"cause or contribute to existing or new standard
violations, or delay attainment, they should not be found in conformity.
EPA\'s definition of conformity is basically the same definition as that
contained in the Consistency Guidelines of 1975\...\... Id. at 22.
Additionally, the court noted that in 1980, EPA had issued an advance
notice of proposed rulemaking, published at 45 Fed. Reg. 21590 (Apr. 1,
1980), in which EPA \"flatly asserts that \`EPA believes that the
Congressional intent of § 176(c) was that federal actions should not be
allowed to cause delay in the attainment of maintenance of the NAAQS in
any state or violation of PSD requirements in areas with air cleaner
than the NAAQS.\"\' Id. at 23. Because the court decided it was clear
that \"Congress was aware of the Guidelines when it developed the
conformity criteria of § 176(c),\" but did not change the language
significantly when transforming the Guidelines into the §176(c)
conformity requirement, it held that Congress essentially ratified
EPA\'s original definition. This is so, the court held, because where
\"\`an agency\'s statutory construction has been fully brought to the
attention of the public and the Congress, and the latter has not sought
to alter the interpretation although it has amended the statute in other
respects, then presumably the legislative intent has been correctly
discerned,\"\' (citing International Brotherhood of Teamsters v. Daniel,
439 U.S. 551,556 n.20 (1979)). Id. at 18-25.

133 Id. at 29-30. The judge gave EPA 270 days from the date of his order
(until Nov. 1995) to promulgate the new regulation, and reminded EPA to
give the public 60 days to comment on the proposed new regulation. Id.

134 Joint Brief of Environmental Petitioners, Environmental Defense
Fund, Inc. et al. v. United States Environmental Protection Agency, No.
92-1003 and consolidated cases 94-1047,94-1062, U.S. Ct. of App. (D.C.
Cir.), Feb. 27, 1995 at 1 \[hereinafter EDF Joint Brief\], and the Brief
of Government Respondents, Environmental Defense Fund, Inc., v. United
States Environmental Protection Agency, et al., No. 94-1044 and
consolidated cases, U.S. Ct. of App. (D.C. Cir. 1995) at i \[hereinafter
EPA Brief\]. During the early stages of the case, the American Trucking
Association and the American Road and Transportation Builders
Association joined in these suits as intervenors. EPA Brief at i.

135 Id at 1-2. Clearly, a number of EDF\'s allegations involve
transportation conformity rather than general conformity. This article
will discuss the arguments relating only to general conformity issues.

136 EDF Joint Brief, supra note 134, at 16.

137 Id. at 17. In making this argument, EDF cited a number of cases it
believes supports the theory that EPA cannot carve out certain
exemptions to a statute where no statutory language exists to permit it.
For example, in Hercules Inc. v. U.S. Environmental Protection Agency,
938 F.2d 276, 280 (D.C. Cir. 1991) a governing statute required federal
agencies selling real property to notify the purchaser if hazardous
waste had been stored on the property. In that case, the court held that
EPA erred by limiting the notification obligation to situations where
the hazardous waste was stored during the time the property was owned by
the United States. The court stated, \"We reject the EPA\'s action
because it reads into the statute a drastic limitation that nowhere
appears in the words Congress chose and that, in fact, directly
contradicts the unrestricted character of those words.\" Id. In Sierra
Club v. U.S. Environmental Protection Agency, 992 F.2d 337, 343-45 (D.C.
Cir. 1993), a statute required groundwater monitoring by facilities
potentially receiving certain enumerated wastes. The court determined
that EPA acted improperly when it required monitoring only at larger
facilities receiving such wastes. It held: \"Nothing in the statute
diminishes or qualifies the generality of these two key words -
equipment and facility. Nothing in the statute states that only certain
kinds of equipment of facilities need to be regulated.\" Id.

^138^ Clean Air Act § 176(c)(3)(B)(i) states that until a SIP revision
is approved, conformity of transportation plans, programs and projects
will be demonstrated if transportation projects \"come from a conforming
transportation plan as defined in \[§ 176(c)(3)(A)\] or for 12 months
after Nov. 15, 1990, from a transportation program found to conform
within three years prior to Nov. 15, 1990.\"

139 EDF Joint Brief, supra note 134, at 18. EDF cites as support Sierra
Club v. U.S. Environmental Protection Agency, 719 F.2d 436, 453 (D.C.
Cir. 1983), in which the court held \"where a statute lists several
specific exceptions to the general purpose, others should not be
implied.\"

140 42 U.S.C. § 4334.

141 EDF Joint Brief, supra note 134, at 18.

142 EDF argues that EPA\'s rationale for including the grandfather
provision (i.e., that to do otherwise would unfairly cause some projects
which had complied with the law to halt in mid-stream upon adoption of
the General Conformity Rule) is \"fallacious.\" EDF asserts that the
four-part test upon which the grandfather exemption was based was
unnecessary because no retroactivity problem exists with conformity
situations. The four-part test as enumerated by EPA in the Final Rule
was: (1) whether the new rule represents an abrupt departure from well
established practice or merely attempts to fill a void in an unsettled
area of law; (2) the extent to which the party against whom the new rule
is applied relied on the former rule; (3) the degree of burden which
immediate application of a rule imposes on a party, and (4) the
statutory interest in applying a new rule despite the reliance of a
party on the old standard. 58 Fed. Reg. at 63216. EDF claims that there
should be no retroactivity problem because the operative actions for
purposes of § 176(c)(1) occur when an agency engages in, supports in any
way, provides assistance for, licenses or permits, or approves an
activity.

143 Id at 20. According to EDF, \"the statute is crystal-clear about the
point in time at which conformity must exist: it must exist\... on the
date when the agency \'engage\[s\] in,, support\[s\], in any way or
provide\[s\] financial assistance for, license\[s\] and permit\[s\], or
approve\[s\]\' the activity. . . .\" Id.

^144^ EPA Brief, supra note 134, at 18.

145 40 C.F.R. § 51.850(b) and (c)(1).

146 EPA Brief, supra note 134, at 18.

147 Id. at 19.

148 Id. at 22. EPA noted in its brief that although Clean Air Act §176
was established by the 1977 Clean Air Act Amendments, it did not call
for EPA or any other agency to adopt regulations to implement the
conformity requirement. Additionally, the only specific
non-transportation conformity regulation existing at that time, 40
C.F.R. §6.303, applied only to EPA actions, not to those of other
federal agencies. Id.

149 Id. at 22, citing 58 Fed. Reg. at 63216.

150 Id at 22.

151 Id

152 Id. at 25.

153 Id. EPA disagrees with EDF\'s contention that concerns about
retroactivity are not implicated unless the entire transaction is
completely in the past. Such a view, the Agency asserts, is contrary to
the court\'s decision in NRDC v. Thomas, 838 F.2d 1224 (D.C. Cir. 1988),
cert. denied, 488 U.S. 901 (1988), where NRDC challenged EPA\'s decision
to exempt certain facilities that had increased facilities\' stack
height from the requirement that they demonstrate that the increase was
necessary to avoid specific adverse consequences, in order to receive
emissions limitation credits. The court held that retroactivity was
involved in the case

simply because enforcement of the demonstration requirement might
impinge unfairly on source owners that made investments or other
commitments in reasonable reliance on prior understandings . . . Clearly
the issue entails a balancing of the interest in prompt and complete
fulfillment of statutory goals against the inequity of enforcing a new
rule against persons that justifiably made investment decisions in
reliance on a past rule or practice.

Id. at 1244.

154 EPA Brief, supra note 134, at 31.

155 Conservation Law Foundation v. FHWA, 24 F.3d 1465 (1st Cir. 1994).
The case dealt with a project in which a highway was being constructed
across the island of Jamestown, Rhode Island, to connect two bridges.
Final federal environmental approval to proceed was given in 1988; the
state acquired the necessary land by 1990; and the final FHWA approval
and permit from the Army Corps of Engineers were issued in 1992. Id. at
1467, 1480 n.9.

156 Id at 1480. For its part, EDF dismisses the First Circuit\'s
decision in the CLF case because it \"ignores the plain language of the
Act.\" EDF Joint Brief, supra note 134, at 22.

157 Id. at 33-34.

158 Id

159 EDF Joint Brief, supra note 134, at 60.

^160^ Id. at 62.

161 Id at 59-60, citing Clean Air Act § 172(c)(5), in which SIPS in
nonattainment areas must require permits for \"major stationary
sources.\"

162 EPA Brief, supra note 134, at 69.

The statutory language and legislative history \[of § 176(c)\] disclose
that Congress paid extremely little attention to the matter of
conformity of non-transportation federal actions. It is inconceivable
that Congress intended to require agencies to expend the enormous
resources that would be necessary to make individualized conformity
determinations for all federal actions - without exception - given that
the statutory language and legislative history fail to reflect that such
a requirement was even debated.

Id. at 74.

163 Id at 73-74.

164 Id. at 70. It cites case law to support the argument that there is
\"virtually a presumption in its favor,\" Public Citizen v. Young, 831
F.2d 1108, 1112 (D.C. Cir. 1987), and that de minimis exceptions should
be inferred \"save in the face of the most unambiguous demonstration of
congressional intent to foreclose them.\" Alabama Power Co. v. Costle,
636 F.2d 332, 357 (D.C. Cir. 1979). The EPA also cites to Pacific Gas &
Electric Co. v. FERC, 720 F.2d 78, 89-90 (D.C. Cir. 1983) (\"most \...
statutory provisions \... must incorporate some common sense limits.\")
Id.

165 EDF Joint Brief, supra note 134, at 70.

166 467 U.S. 837 (1984). The Chevron test requires the court to decide
whether Congress has directly spoken to the precise question at issue,
and, if the statute is silent or ambiguous, to decide whether the
agency\'s interpretation is based on a permissible construction of the
statute. Id. at 842-44.

167 EPA Brief, supra note 134, at 70-71.

168 Id. at 82.

169 EDIT Joint Brief, supra note 134, at 52.

170 Id. Indeed, says EDF, the \"stark inconsistency between the plain
language of § 176(c)(1) and EPA\'s rule fully suffices to require
reversal. . . .\" Id. at 53. The EDF points to two other provisions of
the Clean Air Act as \"additional confirmation\" that the exemption
included by EPA in the definition of \"indirect emissions\" shouldn\'t
be there. First, says EDF, in § 176(c)(2)(A), Congress directed that
transportation conformity determinations must include within their scope
not just emissions from constructing a highway, but also emissions from
motor vehicles using the highway. \"Congress mandated this result even
though USDOT has no \`continuing program responsibility\' over how many
care are allowed to use the highway.\" Id. Second, EDF argues that Clean
Air Act § 316, which governs air pollution requirements in connection
with EPA grants for construction of sewage treatment plants, requires
consideration of the emissions foreseeably resulting from the commercial
and residential development of additional sewage treatment capacity, not
just from construction of the plant itself, as part of the conformity
review. Id. at 54. See Clean Air Act § 316(b)(3), 42 U.S.C. §
7616(b)(3). These two provisions, according to EDF, \"reinforce the
conclusion \... \[that\] the import of conformity is to make air
pollution control part of the \`continuing program responsibility\' of
each agency, and to give each agency power to \`control\' non-conforming
pollution by simply withholding its participation.\" EDF Joint Brief,
supra note 134, at 55. EDF also believes that \"continuing control\"
could be easily exercised by including mitigation measures in the SIP.
Id at 57-58. \"Use of the SIP avoids the need for the approving agency
itself to have the authority to impose mitigation measures, or to have
enforcement authority separate from the SIP.\" Id.

171 EPA Brief, supra note 134, at 62-63. As an example, EPA describes
the circumstances surrounding sale of land by a federal agency. Under
EDF\'s theory that the federal agency should remain responsible even
after the sale, the agency would be responsible for ensuring that the
emissions from future use of the land would conform to the SIP. When the
sale is complete, EPA argues, \"the federal agency has no control over
the use of the property and so no means of compelling compliance with
any mitigation measures or even ensuring that actual use is consistent
with that planned at the time of the sale.\" Id. at 63.

172 Id. at 64. There was no indication that Congress intended to impose
as burdensome a requirement on federal agencies performing their
statutory functions as would result if the \"inclusive\" definition of
\"indirect emissions\" was adopted, according to EPA. Id. at 67.
Additionally, because the language of § 176(c)(1) is so \"terse as to be
ambiguous about how compliance \... should be met or measured,\" EPA\'s
interpretation of the statute is entitled to the deference recognized as
appropriate under the second prong of the Chevron test. Id. at 61.

173 EDF Joint Brief, supra note 134, at 64 (emphasis added by EDF).

^174^ Id. at 65.

175\". . . \[T\]he law is clear that unless an issue was raised during
the administrative process, it cannot be raised for the first time on
appeal\" citing Natural Defense Resources Council v. Environmental
Protection Agency, 25 F.3d 1063, 1073-74 (D.C. Cir. 1994).

176 EPA Brief, supra note 134, at 88-89. Clean Air Act § 179 enables EPA
to sanction violations by prohibiting approval of highway projects and
construction grants. 42 U.S.C. § 7509.

177 Id. at 90.

178 Id. at 89-90.

^1^7^9^ CA DC, No. 94-1044, Apr. 19, 1996. See Env\'t Rep. (BNA) Vol.
26, No. 50, Apr. 26, 1996, 2419.

^180^ Id.

181 Id.

182 Id. at 2420.

183 Id.

184 Id.

185 Final Rule, supra note 31, at 63227.

186 CLF, supra note 50, at 277.

187 Supra note 134 and accompanying text.

1^88^ For example, the Clean Water Act § 404 dredge and fill permits
issued by the Army Corps of Engineers (COE) are often limited to small
portions of otherwise sizable projects, such as a single river crossing
for a 500 mile gas pipeline. The COE estimated in its comments to the
proposed general conformity regulation that 65,000 of its regulatory
actions would have required a conformity review in 1992 under the
inclusive definition of indirect emissions. Id. EPA noted in its Final
Rule, supra note 31, at 63219, that the inclusive definition of indirect
emissions \"could be interpreted to include virtually all Federal
activities, since all Federal activities could be argued to give rise
to, at least in some remote way, an action that ultimately emits
pollution.\" EPA also noted,

This broadest interpretation of the statute could impose an unreasonable
burden on the Federal agencies and private entities that would have been
affected by that definition. For example, since the Federal Government
issues license for any export activities, an inclusive definition
approach could go so far as to require the manufacture of the export
material and the transportation of the same material to be subject to a
conformity review. Such an approach, however, is very burdensome due to
the large number of export activities, the fact that the licensing
process is not a factor in any SIP, and that the vast majority of these
manufacturing and transportation activities may have little to no impact
on air quality.

Id.

189 Public comments received by the EPA in response to its proposed
general conformity regulation noted several examples of federal
activities that are \"not normally considered in SIPs but could not
clearly be said to have absolutely no ties to actions that result in
emissions of pollutants.\" Final Rule, supra note 31, at 63219. These
included COE permits actions, sale of federal land, National Pollutant
Discharge Elimination System (NPDES) permit issuance, transmission of
electrical power, export license actions, bank failures, and mortgage
insurance. Id.

190 Final Rule, supra note 31, at 63229.

^191^ 40 C.F.R. § 93.152 (emphasis added).

192 EPA notes in the Final Rule that \"a solution may be impossible
unless it is directed at all the contributing sources. This role is
given to the State and local agencies by Congress and should not be
interpreted as the Federal agencies\' role under section 176(c).\" Final
Rule, supra note 31, at 63220.