Issue Management Services
Transportation Conformity Issue Brief
Patrick W. Merkel,
Regulatory Counsel, Stateside Associates
August 1999
The Clean Air Act Amendments (CAAA) of 1990 require transportation
projects in nonattainment and maintenance areas to be consistent
with the state's commitments to meet national air pollution standards.
This requirement is called "transportation conformity."
Conformity ensures that proposed transportation projects do not
produce new air quality violations, worsen existing violations,
or delay timely attainment of National Ambient Air Quality Standards
(NAAQS).
Nonattainment areas are those areas that do not meet the NAAQS for
ozone, carbon monoxide, particulate matter, or nitrogen dioxide
(NOx). Maintenance areas are those area s that have violated NAAQS
in the past but now are implementing plans to meet NAAQS. The three
main air pollutants caused by vehicle emissions are carbon monoxide,
ozone and particulate matter.
Nonattainment areas are required to submit state air quality implementation
plans (SIPs) every three years to USEPA. The SIPs must demonstrate
how the nonattainment area plans to meet the NAAQS. Federal transportation
laws require metropolitan areas to develop a transportation improvement
plan (TIP) covering three years and with long range plans projecting
twenty years ahead listing all planned road projects. The CAAA requires
TIPs to conform with SIPs. Conformity means that anticipated emissions
from proposed highway projects must fit within emission budgets
in the SIP and not delay attainment of the NAAQS. Except in certain
cases, projects cannot receive federal funding unless they are part
of a conforming TIP. There are more than 266 multi-county areas
of the country that must demonstrate conformity.
USEPA, with assistance from USDOT, promulgated the first transportation
conformity rules in November 1993. In 1997, USEPA issued a third
set of amendments to the rule to clarify and streamline the rule.
The 1997 amendments also allowed projects that were past the environmental
review process (the NEPA process) in areas that had previously been
found to conform to advance to construction if the area do not have
a currently conforming plan. This was termed as "grandfathering"
projects. Grandfathering of projects allows continued development
of projects in areas that do not have an approved transportation
plan when significant financial investment has been made in the
project.
The Environmental Defense Fund challenged the 1997 transportation
conformity rule amendments. On March 2, 1999, the U.S. Court of
Appeals for the District of Columbia issued an opinion in Environmental
Defense Fund v. EPA. The Court prohibited the use of EPA's grandfathering
provision and overturned all project decisions based on that rule.
Despite pressure from the American Association of State Highway
Transportation Offices and the American Highway Users Association,
USEPA and USDOT decided not to appeal the Court of Appeals decision.
On June 18, 1999, USDOT issued guidance concerning the grandfathering
of highway projects. The guidance prohibits the funding of "active
high-way design" or preliminary engineering projects and right-of-way
acquisition projects unless full funding has been secured prior
to a conformity lapse. Senator Kit Bond (R-Missouri) has introduced
legislation that would codify the overturned conformity rules.
On June 22, 1999, USDOT, Georgia DOT, Atlanta Regional Commission
and environmental groups settled a lawsuit over the grandfathering
of 61 metro Atlanta road projects. The lawsuit had been files in
early 1999 challenging the grandfathering of the road projects.
The environmental groups had maintained that the grandfathering
provision had been misapplied because the projects were in the planning
or right-of-way acquisition stages and a significant financial investment
had not been made. The settlement allows 17 of the projects to move
forward, while the other 44 will be ineligible for the 80% federal
funding they were scheduled to receive.
In July 1997, US EPA promulgated amendments to the NAAQS for ozone
and particulate matter. USEPA set the new ozone NAAQS at 0.08 ppm
daily maximum eight-hour average. Under the new eight-hour standard,
an area is in nonattainment whenever the average of the annual fourth
highest daily maximum eight-hour ozone concentration exceeds 0.08
ppm. The old ozone NAAQS are based on the number of times in a rolling
three-year period that the ambient ozone concentration is greater
than 0.12 ppm. Areas that are not in attainment of the old ozone
standard still have to come into attainment with that standard.
USEPA established a new NAAQS for particulate matter having an aerodynamic
diameter less than or equal to 2.5 micrometers, known as PM2.5;
and revised the NAAQS for particulate matter with an aerodynamic
diameter less than or equal to 10 micrometers, known as PM10.
The American Trucking Associations filed a lawsuit which challenged
the new ozone and particulate matter standards. On May 14, 1999,
the U.S. Court of Appeals for the D.C. Circuit overturned USEPA's
new standards for ozone and particulate matter. The Court held that
USEPA had arbitrarily set the new NAAQS using an unconstitutional
interpretation of its Clean Air Act authority. The Court remanded
the standards back to US EPA requiring USEPA to express stronger
justification for them.
In September 1998, USEPA issued a final rule requiring 22 states
(located in the East, South and Midwest) and the District of Columbia
to submit SIPs that addressed the regional transport of ground-level
ozone by reducing NOx emissions. The NOx SIP call required states
to submit their SIPs by 09/30/99 and for the emission reduction
measures to be in place by 05/01/03. The state of Michigan challenged
the USEPA's NOx SIP. The U.S. Court of Appeals for the D.C. Circuit
issued an order delaying the NOx SIP call indefinitely.
It is anticipated that a number of metropolitan areas currently
in attainment could be reclassified as in nonattainment on account
of these new standards for ozone, particulate matter and NOx. Although
the rules have been successfully challenged on the local level,
it is very possible that through appeal or rewriting the rules,
additional nonattainment areas will be created. Reclassification
of the metropolitan areas will require those areas to make transportation
conformity determinations prior to decisions on transportation planning
and funding, and could require more stringent emission controls
on stationary and mobile sources.
The penalties for not complying with the transportation conformity
requirements can vary. Two of the more severe penalties are: USEPA
can "bump" a region up into the next level of nonattainment,
which imposes additional restrictions on the region; and USDOT can
withhold federal highway project funds. The severity of the penalties
provides encouragement to states to have their TIP conform with
their SIPs.
USDOT reports that there are currently 123 projects in seven metropolitan
areas where highway projects are stalled because they have failed
to achieve conformity. The seven metropolitan areas are: Ashland,
Kentucky; Atlanta, Georgia; Kansas City Kansas and Missouri; Monterey,
California; Paducah, Kentucky; Raleigh, North Carolina; and Santa
Barbara County, California. In these seven areas, $1.96 billion
worth of road projects will not receive further federal funding
until conformity is achieved. Many of these projects had been grandfathered
under the now invalidated transportation conformity rules.
States with nonattainment areas are attempting to achieve attainment
designation through controls on mobile sources such as, inspection
and maintenance, reformulated gasoline, and low-sulfur gasoline,
and through limiting emissions from stationary sources. As the new
federal requirements create new nonattainment areas, we are likely
to see more states that are forced to require emission reductions
from mobile and stationary sources in order to save popular transportation
projects.
Atlanta, Georgia provides an example of how states are attempting
to address attainment and transportation conformity. The 13 counties
of the metropolitan Atlanta region have are designated as "severe
nonattainment" for ozone, and the area's conformity has lapsed.
The Georgia Environmental Protection Division (EPD) is currently
proposing to revise the Atlanta SIP to meet the ambient air quality
standards for ozone by 2003. The proposed SIP revision includes
annual and more stringent emission tests for cars in the 13 county
metro Atlanta area, additional emission controls for Georgia Power
Company plants, tighter emissions controls for industries in a 45-county
area in north Georgia, and introduction of low sulfur gasoline for
cars. The EPD hopes the SIP revision will be approved by the Georgia
Natural Resources Board in October, so that the SIP can be submitted
to USEPA and Atlanta can reestablish its conformity designation.
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