The opinion of the court was delivered by: John D. Bates, United States District Judge.
The City of Tempe, Arizona ("Tempe") and Joseph Lewis ("Lewis")
(collectively, "plaintiffs") apply for a preliminary injunction to halt
further progress on a development project at Phoenix Sky Harbor
International Airport ("PHX") in Phoenix, Arizona. Plaintiffs assert that
the Federal Aviation Administration ("FAA") improperly authorized grants
for the project, and that the City of Phoenix ("Phoenix") improperly
proceeded with construction, without performing the required conformity
determination under the Clean Air Act and its implementing regulations.
For the reasons stated below, plaintiffs' application is denied.*fn1
The Clean Air Act, enacted in 1970 and amended in 1977 and 1990,
establishes a joint state and federal program to control air pollution.
Under 42 U.S.C. § 7409, the Environmental Protection Agency ("EPA")
must establish primary and secondary national ambient air quality
standards ("NAAQS") for certain pollutants for the protection of public
health and welfare. See 40 C.F.R. Part. 50. As contemplated in
42 U.S.C. § 7410, the measures necessary to attain the NAAQS will be
applied to individual sources through an implementation plan prepared by
each state, subject to EPA review and approval, for each "air quality
control region" within the state. A state implementation plan must
specify emission limitations and other measures necessary to attain and
maintain the NAAQS for each pollutant. 42 U.S.C. § 7410
42 U.S.C. § 7506 (c)(1), as amended in 1990, the so-called
"Conformity Provision" that is at issue here, provides that no federal
agency shall "engage in, support in any way or provide financial
assistance for, license or permit, or approve, any
activity which does
not conform to an implementation plan after it has been approved or
promulgated under section 7410 of this title." The statute specifies that
an activity is in "conformity" if the anticipated emissions will not
frustrate a state implementation plan's general purposes (i.e.,
eliminating violations and realizing expeditious attainment of NAAQS) and
the action will not (1) cause or contribute to a new violation, (2)
exacerbate an existing violation, or (3) delay attainment of the standard
or a required interim reduction or other milestone. Id. §
7506(c)(1)(A)-(B). Congress directed the EPA to promulgate criteria and
procedures for assessing the conformity of federal actions with state
implementation plans. Id. § 7506(c)(4)(A). Those rules were
established in 1993, and are codified at 40 C.F.R. Part 93, Subpart B,
In 40 C.F.R. § 93.153 (c)(2), the EPA exempted from the Subpart B
requirements certain federal actions that "would result in no emissions
increase or an increase . . . that is clearly de minimis." Specifically
identified as exempt are "[r]outine maintenance and repair activities,
including repair and maintenance of administrative sites, roads, trails,
and facilities." 40 C.F.R. § 93.153 (c)(2)(iv). EPA's rule also sets
threshold emissions levels for specific pollutants and provides that any
action for which the total of direct and indirect emissions is below the
applicable threshold level is exempt from the requirement of a conformity
determination under Subpart B. 40 C.F.R. § 93.153 (c)(1).
B. The Center Runway Project
PHX is a major passenger and cargo facility for the southwestern United
States and among the busiest airports in the country. Declaration of Dave
Krietor ¶¶ 3-4. In 1999, PHX staff began planning a construction
project involving the 10,300 foot-long Center Runway, one of PHX's three
runways. Id. ¶ 9. PHX staff had determined that the Center Runway,
which was built in the 1970s and is composed of bituminous asphaltic
pavement, had become degraded over the years and required reconstruction
by 2002. Id. ¶ 6, 9; Declaration of Kevin Flynn ¶ 19;
Administrative Record ("AR") No. 29 (section entitled "Program
Working with the FAA, PHX staff developed a proposal for the Center
Runway Project involving: (i) milling the existing bituminous asphalt
pavement on the Center Runway and overlaying it with 18-inch thick
Portland Concrete Cement ("PCC"); (ii) select milling and overlaying of
portions of two taxiways; (iii) construction of tapers along existing
taxiways; (iv) removal of abandoned utility lines; (v) modification of
existing taxiway/runway lighting systems; (vi) alteration of existing
taxiway and runway signage; (vii) temporary construction access; and
(viii) onsite grading and localized drainage improvements. Krietor Decl.
¶ 14.*fn2 This development was to take place in several phases.
Phase I, which began on July 8, 2002, and has recently been completed,
involved drainage, electrical and earthwork, mill and asphalt replacement
for two taxiways, and preparation for concrete and asphalt work. Id. The
remainder of the Project was scheduled to continue as follows:
Phase III: This phase will begin on approximately
February 26, 2003 for 40 days. During this phase the
Center Runway will be reopened to a reduced length of
7,500 feet, with 1,000 foot safety areas on each end.
Completion of the concrete paving will occur as well
as electrical and drainage work. At the end of this
phase, the Center Runway will be reopened to its full
length of 10,300 feet.
Phase IV: This phase will commence on approximately
April 7, 2003 and is 150 days in duration. During this
phase, the Project will be completed (e.g.,
modification of existing taxiway/runway lighting
systems, alteration of existing taxiway and runway
In early 2001, Phoenix applied to the FAA for funding for the Center
Runway Project under the FAA's Airport Improvement Program. See AR No.
29. Thereafter, the FAA approved four grants totaling over $40 million.
See Flynn Decl. ¶ 10. With respect to each grant, the FAA indicated
in its project evaluation report that no air quality conformity
determination was necessary because the "proposed project is exempted in
accordance with 40 C.F.R. § 93, Subpart B, Section 93.153, Paragraph
(c)(2)." AR Nos. 26 (dated April 18, 2001), 40 (dated September 18,
2001), 51 (dated July 30, 2002), and 57 (dated September 24, 2002).
On October 16, 2002, Tempe, which is located two miles from PHX, and
Lewis, who resides 2.5 miles from PHX, filed the complaint in this case
against the FAA, Phoenix, and certain of their officials.*fn3 Plaintiffs
charge that defendants failed to comply with the Clean Air Act,
42 U.S.C. § 7401, et seq., and specifically the Conformity
Provision, 42 U.S.C. § 7506, because the FAA funded the Center Runway
Project, and Phoenix moved forward with construction, without performing
a conformity determination. Complaint ¶¶ 13, 15. According to
plaintiffs, such a determination is required under the EPA regulations at
40 C.F.R. Part 93, Subpart B, because the Center Runway Project will
cause significant emissions of particulate matter ("PM10"). These
emissions, plaintiffs claim, will have adverse health consequences for
Tempe's citizens (including Lewis) and its city officials and employees,
and will result in damage to Tempe's buildings. Compl. ¶¶ 3-4.
Furthermore, plaintiffs assert, because "the physical expansion of
existing Tempe industries, and the physical development of future
industries, will produce PM10s, [the Center Runway] project will
have . . . significant negative economic ramifications for Tempe as
it will curtail such economic development due to the region already
having reached or exceeded threshold levels for PM10 emissions."
Id. ¶ 3.