The ruling was made by the U.S. Court of Appeals for the District of Columbia.

The Clean Air Act requires that regions update their conformity determinations with clean air standards every three years. Under the Act, transportation projects can only receive funding if the projects are consistent with this conformity. In 1990, the Clean Air Act was tightened to prevent funding for transportation projects that are inconsistent with regional transportation improvement plans (TIPs) that conform to the state air quality plan.

The Court struck down three regulations: a "grandfather" regulation; regulations allowing TIP and project conformity determinations to be made based on disapproved state air quality plans for the first 120 days after such disapproval; and a regulation that allowed metropolitan planning organizations to approve highway projects included in the first three years of a TIP even if that TIP no longer conformed to state air quality plans at the time of project approval.

EPA's "grandfather" regulation had allowed metropolitan planning organizations to approve highway projects for construction if any steps toward project construction had been taken (including right of way acquisition) - if the TIP from which the project came from no longer conformed to air quality targets. In an earlier case, the same court ruled against the Environmental Defense Fund's challenge to the grandfather rule, but only because it saw the grandfather rule as a logical transition from the 1977 Clean Air Act to the 1990 Clean Air Act framework.

The Court's disapproval of regulations allowing metropolitan planning organizations to approve highway projects included in TIPs that no longer conform to state air quality plans was an acknowledgment of the fact that discretion to interpret the Clean Air Act has been trimmed. Several metropolitan planning organizations in areas where air quality is very poor no longer have currently conforming plans and TIPs. Conformity lapses when more than three years pass without a new and approved conformity determination. This ruling only applies to state funded projects - federally funded projects cannot proceed during a conformity lapse.

The first three years of a TIP - the fiscally constrained years - generally contain projects that are closer to construction than those contained in the later years of the TIP. EPA claimed that exempting near-term projects from clean air regulations - even after the plan's conformity had lapsed - struck the proper balance between meeting air quality goals and avoiding disruption to the transportation planning process.

But the Court said that the Clean Air Act provided no such solace and that neither the Court nor the EPA had discretion to decide otherwise. In a strongly worded opinion, the Court ruled that the Act's legislative history made it clear that transportation planning agencies' goals should be "the development of a transportation system that meets both mobility needs and air quality objectives. By requiring [TIPs] to conform to applicable [air quality plans] at the time of project approval, Congress sought to ensure that transportation plans and programs would serve as part of the pollution control strategy for the metropolitan area...in lock step."

The challenge to the EPA regulations was brought by the Environmental Defense Fund, who argued that some state transportation agencies were not complying with emissions standards set by the 1990 federal Clean Air Act. Robert Yuhnke, one of the nation's foremost authorities on clean air and transportation planning, argued the case. Michael Replogle, the Environmental Defense Fund's federal transportation director, assisted. In a case brought by the Sierra Club in 1997, the same court ruled that EPA's one-year exemption from the conformity requirement in poor air quality areas was invalid. For more details on the decision, contact Robert Yuhnke at the Environmental Defense Fund at 303.440.4901.

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