Timeline for Briefs in the 5th Circuit SIP Challenge:

The 5th Circuit has upheld the validity of the Houston State Implementation Plan as of October 2003.  Challenges mentioned in the following brief have been dismissed.

November 21, 2001 Natural Resources Defense Council files Motion Attacking Houston's State Implementation Plan

A Coalition of environmental groups asked a federal district court judge in Washington D.C. to require EPA to develop a Federal Implementation Plan (FIP) to identify emission reduction sources for 56 tons on NOx that they feel is not adequately addressed in the EPA approved Houston SIP.  As in last spring's transportation conformity suit, no local parties are included.  This suit was dismissed by the court.

At the close of last year, the Association spent considerable time and effort bringing to everyone’s attention to this suit filed in Washington D.C. by the National Resources Defense Council over the Houston SIP.

 We believed the issue NRDC chose to sue over was a minute one, but the main issue to the Association was that an organization from New York was suing a Washington D.C. federal agency over OUR air emission plan in a Washington D.C. court.  Thanks to our efforts, Harris County, the City of Houston, HGAC and TNRCC where notified and initial brief material provided and they subsequently intervened. 

 While that is one win, Houston’s SIP remains under strong attack in the 5^th Circuit Court.  These suits are now in confidential settlement talks between the enviro-plaintives, EPA, TNRCC and local agencies.  Because the participants have signed a confidentially agreement, none of us in the public may be told the details of what is being discussed OR agreed to by any of the parties to the suit.  Harris County, City of Houston and HGAC are local agencies participating in these talks but they are unable to share with us any of the details. 

While we applaud the dismissal of the Washington suit, the Association is deeply concerned at the potential of severe consequences from the settlement talks over the 5^th District suits.  Because of this, working with other Houston organizations, we are asking that the confidentially requirement be lifted and that we be kept apprised of progress in the talks.

 We are acting with other organizations to stay abreast of what is happening on this matter and will keep you posted.

Click here for our letter to TNRCC, the Governor's office, TxDOT and HGAC

On December 10th, the WHA asked Harris County to intervene in this action:

December 10, 2001 To: Harris County Judge and Commissioners The West Houston Association is writing to inform you of a significant threat to the future growth and welfare of Harris County. Several national environmental groups recently filed a motion challenging the Houston/Galveston area’s plan to achieve attainment with the air quality standard for ozone. Instead of challenging the plan in Texas, where it would be easier for local governments, businesses, and citizens to participate in the litigation, the national environmental groups attacked the plan far away in Washington, D.C.—in a lawsuit where the U.S. Environmental Protection Agency (EPA) is the only other party. Because this attack poses a significant threat to regional mobility and because of the lack of local representation, the West Houston Association requests that Harris County intervene immediately to protect the interests of our community. The following may be helpful in understanding the litigation and its potential adverse impact on business, transportation, and development interests in the Houston area. On November 8, 1999, the Natural Resources Defense Council (NRDC) and other national environmental groups filed a lawsuit against EPA complaining that states were not timely submitting their ozone State Implementation Plans (SIPs). On May 31, 2000, EPA and NRDC entered into a consent decree requiring Houston and several other cities to demonstrate attainment by October 15, 2001.  The Consent Decree stipulated that if a city was unsuccessful, EPA was required to adopt a Federal Implementation Plan (FIP) for that city. Of course, Houston’s SIP was approved by the EPA before the October 15, 2001 deadline, but the environmental plaintiffs filed a motion on November 21, 2001, claiming that the approval was improper. The plaintiffs argued that the SIP violated the Clean Air Act because it relied on 56 tons worth of enforceable commitments instead of adopted pollution controls.  Enforceable commitments are commitments to adopt pollution controls in the future as new technologies are developed and better understood.  The environmental plaintiffs have asserted that enforceable commitments are improper because they do not result in immediate emissions reductions, and they have asked a court in Washington, D.C. to order EPA to develop a FIP for the Houston/Galveston area. The environmental plaintiffs are asking the court to require EPA to develop the FIP for the Houston/Galveston area within the next 6 months. If successful, the action would have two obvious and detrimental impacts on business, transportation, and development interests in the Houston/Galveston area. First, the area would be required to further reduce emissions from existing sources, or place additional burdens on new sources of emissions to make up for the 56-ton pollution reduction now expressed as "enforceable commitments." This could include additional controls on emissions from the transportation sector. Second, a victory by the plaintiffs would shift control of air pollution control decisions from state and local regulatory authorities to the federal EPA. A victory by the plaintiffs might also have two less obvious, but potentially even more detrimental impacts on the community. First, if EPA fails to develop a FIP within the 6-month timeframe of the Consent Decree, the Court could potentially order the U.S. Department of Transportation to withhold federal highway funding for the Houston/Galveston area. Second, the FIP might trigger a conformity freeze or conformity lapse where many area road and highway projects could not move forward, including those that would be funded pursuant to the recently approved County bond election. Any of these possibilities would have a significant impact on the Houston/Galveston community, especially on mobility within the community. Members of the West Houston Association are particularly concerned with the potential impacts on the improvements scheduled for I-10. For this reason, and in order to protect the broader interests of regional mobility and economic security, we ask the County to intervene in the NRDC lawsuit. We hope that intervention by the County will help ensure that local interests are adequately represented and prevent the "federalization" of emission control decisions that should be made locally. Thank you for your consideration. Sincerely, Roger H. Hord President & CEO Cc: WHA Board of Directors & WHA Membership

Why Did Environmental Groups File Suit?

Environmental Defense, the Sierra Club, GHASP and several individuals filed a suit challenging the amount of emissions the EPA has indicated mobile sources must reduce in order to have a conforming plan.  

The West Houston Association views this suit as an attempt by environmental groups to control what projects are planned and built in the Houston eight county planning area and by extension the nature of growth in the area.

On March 21, 2001, the West Houston Association Board of Directors authorized the our intervention in this lawsuit.  We believe with their suit, ED and others are attempting to interject their bias transportation priorities and no-growth philosophy into the mobility planning and implementation process, superceding the normal public participation process.  The Board is concerned that Houston is at risk of losing or suffering significant delay of essential transportation projects like Interstate 10, Grand Parkway and West Park Toll Road.

Without a voice in any settlement or litigation, this risk is greatly magnified.

As many of you know, Environmental Defense, Sierra Club and local environmental plaintiffs brought suit against the U.S. Environmental Protection Agency (EPA) in an effort to compel EPA to require draconian reductions in air emissions from motor vehicles in the 8-county Houston-Galveston region and to prevent the construction of road and highway projects opposed by the plaintiff environmental organizations. The Fort Bend Economic Development Council, West Houston Association, and North Houston Association filed motions to intervene in this lawsuit so that local interests would be represented, and they were soon followed by the Houston-Galveston Area Council (HGAC), Harris County, and Fort Bend County, which also sought to intervene to protect the interests of local citizens. Settlement negotiations ensued, and an agreement in principle was reached yesterday, May 9, 2001. While the terms of the settlement are still being finalized, EPA has already issued a guidance memorandum to accompany the settlement. EPA also issued a letter late yesterday disapproving the 195 ton motor vehicle emissions budget (MVEB) that was at the center of the lawsuit, and this disapproval, under the terms of the EPA guidance memorandum, will prevent a conformity lapse which otherwise would have occurred on May 12, 2001.

A copy of the agreement in principle is attached to this memorandum. The terms of the proposed settlement are a vast improvement over the settlement terms originally proposed by the environmental plaintiffs on April 6, 2001. This improvement is largely due to the pressure of intervening parties and a flood of phone calls and letters to EPA, the Federal Highway Administration (FHWA), and elected officials. The originally proposed settlement terms included a 151 ton MVEB to be applicable in June 2002, an even lower MVEB to be applicable in 2007 (perhaps as low as 125 tons, which would preclude virtually all new road construction), the halting of 270 road projects contained in the regional transportation improvement plan, the adoption of policies to encourage high density development, and the aggressive development of 9 rail projects. In contrast, the current settlement terms do not: require a lower motor vehicle emissions budget of 125 tons; halt specific road projects; require construction of plaintiff-selected rail projects, or impose any land use controls. Additionally, the applicable motor vehicle emissions budget is a more appropriate number (156.6 instead of 151), which should allow many mobility improvement projects to proceed as previously planned.

Despite the improvements described above, the settlement is far from perfect. HGAC may be forced to drop currently planned projects from the regional transportation improvement plan to get below the 156.6 ton limit before June 2002. The settlement could also limit future flexibility in interpreting the Clean Air Act and/or EPA’s conformity rules. Finally, the lawsuit settlement could encourage additional lawsuits.

The following is a summary of the major provisions of the settlement agreement.

1. EPA is required to issue a guidance document interpreting its conformity timing requirements. The document will state that the 18-month time period during which a new conformity demonstration must be submitted and approved (which started to run when TNRCC submitted the November 1999 MVEB of 195 tons) stopped when EPA disapproved the 195 ton MVEB. Additionally, the guidance document will require HGAC to demonstrate conformity to the new 156.6 MVEB by June 2002. The settlement agreement binds the environmental plaintiffs to these timing interpretations with respect to the current lawsuit (challenging the 195 ton MVEB) and the lawsuit that they have threatened to file to challenge the 283 ton MVEB that is now in effect and the transportation improvement plan that conforms to that budget.

2. EPA agrees to disapprove the 195 ton MVEB (which they did on May 9, 2001) and agrees to allow the 283 ton MVEB to remain in effect until June 20, 2002. The Texas Natural Resource Conversation Commission (TNRCC) agrees to submit a 156.6 ton MVEB as a 2007 rate-of-progress budget, in addition to submitting it as an attainment budget. [This allows the plaintiffs to file a lawsuit challenging the overall ozone attainment plan (the "SIP") without losing the benefit of the 156.6 MVEB.] Finally, EPA agrees to approve the rate-of-progress MVEB submitted by TNRCC and to not approve the SIP in October 2001 unless TNRCC submits the 156.6 ton MVEB as a 2007 rate-of-progress budget.

3. All parties agree that HGAC must demonstrate conformity before June 20, 2002 or Houston will fall into conformity lapse (i.e., the 283 ton MVEB will expire, federal highway funds will be cut-off, and regionally significant road and highway projects may not proceed). Additionally, HGAC must demonstrate that the then-current transportation improvement plan conforms to all 156.6 ton MVEB and to any subsequently submitted MVEBs determined to be adequate by EPA prior to such conformity determination (i.e., if TNRCC submits a lower MVEB, then the lower budget will apply subsequent to its submittal).

4. TNRCC agrees to revise the 156.6 ton MVEB if any additional on-road motor vehicle control measures are added to the SIP, or if the agency submits additional on-road motor vehicle control measures to fulfill enforceable emission reduction commitments in the SIP.

5. The environmental plaintiffs are not limited in their ability to file additional lawsuits challenging the 283 ton conformity determination, any of HGAC’s future conformity determinations (including the one relating to the 156.6 MVEB that is due by June 20, 2002), or any road or highway project that they don’t like. The parties also agree to engage in further discussions regarding transportation and transit strategies to reduce motor vehicle emissions.

6. The environmental plaintiffs agree to dismiss the lawsuit after EPA, HGAC, and TNRCC have performed the tasks described above, and EPA agrees that the plaintiffs are eligible for attorney’s fees (payable from the U.S. Treasury).

As mentioned above, EPA has already issued the guidance document required by the proposed settlement and has already issued its disapproval of the 195 ton MVEB. The environmental plaintiffs have agreed that there will be no conformity lapse in the Houston-Galveston region before June 2002. It will now be up to HGAC to develop a new transportation improvement plan that conforms to the 156.6 ton MVEB by the June 2002 deadline. Finally, all parties interested in regional mobility will need to remain prepared to defend additional lawsuits that the environmental plaintiffs may file.

Please let us know if you have any questions with respect to these matters.

Final Draft Agreement in Principle to Settle 5th Cir. MVEB litigation

May 9, 2001, 11 am

1. EPA issued written guidance construing the application of the 40 CFR 93.104(e) with respect to determining when a conformity determination is required. FHWA issued a letter concurring with EPA's guidance construing the rule. Such Guidance and FHWA's letter is attached hereto, and incorporated herein. Petitioners support this interpretation in this case, except that petitioners only support EPA's interpretation of the application of §93.120(a) in this case and in the case of notice of intent to sue mentioned in paragraph 6 of this agreement. Petitioners support of the guidance does not waive or in any way compromise any of the arguments set forth in the Petitioners’ intent to sue identified in paragraph 6 of this settlement agreement.

2. The parties agree that dismissal of this litigation is contingent, in part, upon the performance of the following actions:

1) EPA has determined that the 195 ton per day ("t/d") motor vehicle emission budget ("MVEB") for NOx and a parallel MVEB for VOC are not adequate pursuant to 40 CFR §93.118(e);

2) the submission by Texas of an MVEB for NOx as part of its rate of progress("ROP") SIP that limits NOx emissions in 2007 to 156.6 t/d, and that allows emissions estimates used to demonstrate conformity to be derived using the assumptions used to develop this emissions budget for the attainment SIP pursuant to §93.122(a)(6); and

3) EPA's approval of or determination of adequacy for the MVEB submitted by Texas as part of the Texas ROP SIP.

To accomplish this result, EPA has determined the 195 ton per day NOx MVEB and the MVEB for VOC submitted together as part of the November 1999 SIP revision are, taken together, not adequate because the Houston Galveston area will not be able to demonstrate attainment with these budgets. EPA has issued a letter to that effect that will be immediately effective upon signature. The Texas Natural Resource Conservation Commission has proposed to adopt a 156.6 t/d MVEB for NOx and a parallel MVEB for VOC as part of its ROP SIP, and agrees to submit such MVEBs to EPA in June 2001.

EPA anticipates that under the terms of a separate consent agreement prescribing time frames for agency actions, NRDC v. Whitman, D.C. District No.99-2976(CKK), EPA will take final action on a SIP revision containing both rate of progress ("ROP") and attainment MVEBs by October 15,2001. EPA agrees that it will not take action on the attainment demonstration SIP until TNRCC adopts and submits MVEBs for NOx and VOC as part of its ROP SIP.

3. The parties agree that dismissal of this litigation depends, in part, on the schedule for the development of a metropolitan transportation plan and transportation improvement program ("TIP") that conforms to the motor vehicle emissions reductions required by the proposed Texas SIP. Accordingly, EPA has issued regulatory guidance attached as Exhibit -interpreting 40 CFR §93.104(e) of the current conformity rule and the corresponding provision of the Texas conformity SIP, 30 Texas Administrative Code §114.260, as requiring that the conformity status of the metropolitan transportation plan and TIP will lapse 18 months after the December 2000 submission of the ROP SIP on June 20, 2002, if a new determination of conformity is not made prior thereto. EPA interprets the rule as requiring that such conformity determination shall be made with respect to all the MVEBs in the applicable implementation plan as revised by the SIP revision to be acted upon by EPA in October 2001, and any submitted MVEBs determined to be adequate by EPA prior to such conformity determination. EPA agrees to request the written concurrence of the Texas Natural Resource Conservation Commission to this interpretation of the rule. The Houston-Galveston Area Council has indicated in correspondence to EPA that it intends to complete a new conformity analysis against all motor vehicle emissions budgets in the applicable implementation plan as revised by EPA's action in October 2001, no later than June 20, 2002, or 8 months after EPA signs a notice approving the attainment SIP, whichever is later.

4. EPA agrees not to approve the attainment SIP unless Texas includes in the SIP revision scheduled for submission in June 2001 an enforceable commitment stating that:

SIP Text: If the Commission adopts additional control measures to reduce on-road motor vehicle emissions as a SIP revision, the Commission will concurrently revise the motor vehicle emissions, budget(s) for the attainment SIP and submit such revised budget(s) to EPA as a revision to the attainment SIP.

5. EPA agrees to repropose approval of the Houston attainment demonstration SIP to clarify that EPA proposes to approve the budgets in the SIP only until and if the State submits any control measures to fulfill its enforceable commitments that affect the budgets, along with new budgets that reflect those measures, and EPA finds these budgets adequate. Once EPA finds these budgets adequate, they will become the applicable budgets for future conformity determinations until replaced.

6. All parties specifically agree that a notice of intent to sue has been issued by the environmental plaintiffs dated June 29, 2000, regarding conformity under the Clean Air Act of the Metropolitan transportation Plan ("MTP") and Transportation Improvement Program ("TIP") adopted by the Houston-Galveston Area Council in April 2000 and approved by the US Department of Transportation in April 28, 2000. All parties agree that nothing in this settlement agreement is intended to settle or compromise the ability of any party to seek or oppose relief with respect to the claims set forth in such notice or any other claims related to the adoption of such MTP and TIP. Further, ongoing discussions regarding this notice of intent to sue will continue regarding transportation and transit strategies available to reduce motor vehicle emissions in the Houston-Galveston area.

7. Petitioners agree that the 5th Circuit challenge be dismissed with prejudice upon performance of the various commitments undertaken in paragraphs 1-4 hereof, including but not limited to obtaining the written concurrence from TNRCC pursuant to paragraph 3, provided that no final conformity determination with respect to a metropolitan transportation plan or TIP has been made by us DOT in reliance upon the MVEB declared to be inadequate. Following dismissal of Petitioners' claims on the merits, the court shall retain jurisdiction only to resolve any dispute between the parties regarding an award of appropriate costs of litigation, including reasonable attorneys fees, pursuant to CAA §307(f).

8. EPA agrees petitioners are eligible for an award of the costs of litigation as authorized by CAA §307(f), including reasonable attorney fees. [The settlement agreement will include an appropriate schedule governing the process for requesting, negotiating, and, if necessary litigating an application for fees. SETTLEMENT AGREEMENT LANGUAGE TO BE INSERTED IN SUBSTITUTION OF THIS SENTENCE.]