January 30, 1993 - From the January, 1993 issue

Clean Air Act Sec. 176 (c) Gives SCAG a New Role:

Section 176 (c) of the Clean Air Act prohibits federal agencies from approving, permitting, providing funds for or otherwise assisting any activity that does not "conform" to the appropriate air quality implementation plan. However, as Richard Zbur and Cynthia Simons point out, the Southern California Association of Governments' criteria were developed before Section 176 (c). This has granted SCAG the influence over conformity assessment being made in the Los Angeles Basin.

Although the Southern California Association of Governments (SCAG) has little approval authority over general development projects in the Southern California area, SCAG findings issued in conjunction with its review of environmental documentation through the CEQA process now may deserve greater attention. 

Due largely to the 1990 amendments to the Federal Clean Air Act, lead agencies and project sponsors should not assume that a negative SCAG finding may be dispensed with by a statement of overriding considerations. For projects where federal action is necessary, the Clean Air Act requires the responsible federal agency to make a finding of “conformity” with the regional air plan. A negative SCAG finding may make this difficult, if not impossible, and thus could serve as a basis for stopping a project. 

Clean Air Act Section 176 (c) 

In developing amendments to the Federal Clean Air Act (CAA), Congress sought to foster long-range planning for meeting federal air quality standards and assure that federal agencies do not take or support actions that are inconsistent with the efforts to achieve those standards. As a result, Section 176 (c) of the CAA prohibits federal agencies from approving, permitting, providing funding for or otherwise assisting any activity that does not “conform” to the appropriate air quality implementation plan. 

In Los Angeles, Orange, Riverside and portions of San Bernardino Counties, the relevant plan is the South Coast Air Quality Management District (SCAQMD) Air Quality Management Plan (AQMP). While the 1979 AQMP was the last plan approved by the Environmental Protection Agency (EPA), federal guidelines for the implementation of Section 176 (c) may require federal agencies to consider the assumptions and strategies contained in more recent plans in making conformity determinations. SCAQMD’s most current AQMP was adopted in July 1991. 

EPA regulations interpreting Section 176 (c) will likely apply its provisions to a broad range of federal actions that may be needed to complete general development projects in the Southern California area. These include wetlands permits issued by the Army Corps of Engineers, projects requiring federal funding of any kind, and purchases, leases or swaps involving federal lands. Current drafts of the general development regulations indicate that conformity findings may not be required for small projects which result in emissions below fairly low thresholds. Currently proposed levels are comparable to those emissions thresholds used by the SCAQMD for assessing project significance under CEQA. 

A positive conformity finding is critical to a project requiring federal approvals, permits or funding. Unlike a finding of significant impacts under CEQA, a finding of nonconformity by a federal agency cannot be overcome by a statement of overriding considerations. If the federal agency cannot make the required finding, it is prohibited from taking the necessary action.

EPA expects to forward its conformity regulations under Section 176 (c) to the Office of Management and Budget by mid-January. In addition, separate regulations will govern the conformity of transportation actions, which could affect the progress of local transit projects. While EPA is formulating these regulations, interim guidance is already in place for making transportation-related conformity findings until a final rule is adopted. 

EPA’s Likely Direction 

The provisions of Section 176 (c), along with draft regulations circulated to an informal working group, give some indication of EPA’s likely requirements. Projects specifically identified in the relevant air plan and those that fully offset increases in identified emissions are likely to conform. Otherwise, sponsors of development projects may, among other things, be required to: 

1) complete modelling of localized carbon monoxide impacts to demonstrate that the project will not cause or increase the severity of violations of the federal standard for carbon monoxide concentrations;

2) demonstrate that increases in project-related emissions (possibly both direct emissions and mobile source emissions attributable to the project) are within regional emissions budgets established in the AQMP. 

In addition, the regulations are likely to require project sponsors to implement applicable AQMP control measures and demonstrate that the project is consistent with the assumptions that served as the basis for the air plan, such as projections for population growth and employment in the region. 

SCAG’s Conformity Role 

While it is the responsibility of each federal agency to make a conformity finding under the CAA, in certain instances SCAG may have authority to assess project conformity, either for federal or regional purposes. Under the CAA, SCAG is designated as a metropolitan planning agency and is required to make federally based conformity findings prior to taking transportation-related actions, such as including projects in the Regional Transportation Improvement Program. This is the only direct source of SCAG authority for assessing conformity under the CAA.

Advertisement

Also, the 1991 AQMP delegates to SCAG the responsibility to assess the conformity of “regionally significant projects” if the local jurisdiction has not developed its own conformity program. Regionally significant projects include, among other things, office buildings employing more than 1,000 people or containing over 25,000 square feet, hotels of 500 or more rooms, and residential developments of 500 or more dwelling units. 

SCAG’s authority in this area is more limited than when transportation projects or programs are involved. For example, it does not extend beyond the South Coast Air Basin, and, therefore, excludes Ventura County entirely. In addition, because such an assessment is not made pursuant to CAA Section 176 (c), a project for which SCAG has issued a finding of non-conformity pursuant to this AQMP provision can be approved with a statement of overriding considerations.

SCAG has developed three sets of criteria for assessing the conformity of transportation, wastewater treatment and general development projects. For general development projects, the criteria focus on reducing vehicle miles travelled (either by achieving jobs/housing balance targets established for each subregion or through other means), implementing transportation demand management measures, assessing project consistency with AQMP growth projections, and assessing localized carbon monoxide impacts.

SCAG’s New Influence 

Because the existing SCAG criteria were developed prior to the amendment of Section 176 (c), they may not be consistent with EPA’s new criteria for assessing conformity. Current draft EPA regulations would require the revision of air plans to incorporate conformity provisions consistent with the requirements of Section 176 (c). 

Nevertheless, the current SCAG criteria provide the only guidance available to federal agencies, which currently are required to assess conformity under the CAA in spite of a lack of federal regulations implementing Section 176 (c). Because most of these agencies have little or no expertise in conducting air quality analyses (let alone assessing consistency with regional air plans developed by the air planning districts and SCAG) it is understandable that SCAG has acquired considerable and unusual influence over conformity assessments currently being made in the Basin.

Even though SCAG has no federal authority to assess conformity of general development projects, federal agencies facing this daunting task have been relying on SCAG findings based on the existing SCAG criteria in order to satisfy their obligations under Section 176 (c). A federal agency may find it difficult to make a positive conformity finding under Section 176 (c) if SCAG has reached the opposite conclusion. 

Even after federal regulations defining the conformity requirements under Section 176 (c) are promulgated, SCAG will probably continue to hold considerable influence over the conformity process. In those instances where SCAG’s jurisdiction to assess conformity pursuant to the South Coast Air Basin AQMP overlaps with that of a federal agency under the CAA, it is likely that federal agencies will continue to give great weight to SCAG’s evaluation of project conformity. If SCAG and the federal agency were to arrive at differing conclusions, project sponsors would find it difficult to demonstrate that a federal agency with no expertise in air quality planning should win out over the regional planning agency that was a principal contributor to the region’s air plan.

Easing the Road Ahead 

Given the potential implications of a negative SCAG finding, project sponsors are finding it in their best interests to approach SCAG as they have traditionally dealt with local agencies with approval authority over a project. Presenting the project to SCAG staff at an early stage to solicit comments and concerns may head off negative comments through the CEQA process at a later date. 

EIRs concluding that a project conforms to the relevant air plan are likely to lend greater support to the federal agency’s finding of conformity than will resolution of this issue at a later date. Moreover, a positive finding by SCAG, along with the official blessing of SCAG’s Local Assistance and Compliance Committee, which approves staff findings in this area, may be influential in reducing opposition to a project based on project-related air quality impacts. 

SCAG’s new-found influence over these vital areas may be here to stay: project sponsors and lead agencies should be aware of its role before proceeding with a project. 

Richard S. Zbur is a partner and Cynthia K. Simons is an associate with the Los Angeles law firm of Latham and Watkins. Both practice environmental and land-use law, emphasizing air quality and planning policies affecting development.

<

Advertisement

© 2022 The Planning Report | David Abel, Publisher, ABL, Inc.