dissenting:
It is firmly established that, in tailoring a remedy, “federal courts should ‘exercise the least possible power adequate to the end proposed.’ ” Stone v. San Francisco, 968 F.2d 850, 861 (9th Cir.1992) (quoting Spallone v. United States, 493 U.S. 265, 280, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990)). Where the remedy is directed toward a state or local governmental entity, the federal court also must give “appropriate consideration ... to principles of federalism in determining the availability and scope of equitable relief.” Rizzo v. Goode, 423 U.S. 362, 379, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); see also Stone, 968 F.2d at 860-61. Federal courts “should always seek to minimize interference with legitimate state activities in tailoring remedies.” Id. at 860. Because I believe the district court failed to fully account for these limitations on its remedial authority, I respectfully dissent.
I.
The majority concludes that MTA’s consent to the dispute resolution mechanism in the consent decree “relieves many federalism concerns.” Supra at 1050. Some courts have concluded that potential federalism problems posed by a consent decree involving a state governmental entity do not arise because the state entity has consented to the provisions of the decree, thus “waiving” any federalism objections. See Alan Effron, Federalism and Federal Consent Decrees Against State Governmental Entities, 88 Colum. L.Rev. 1796, 1801 n. 31 (1988) (citing United States v. City of Yonkers, 856 F.2d 444, 454 (2d Cir.1988), rev’d in part on other grounds sub nom., Spallone v. United States, 493 U.S. 265, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990); Allen v. Alabama State Bd. of Educ., 816 F.2d 575, 577 (11th Cir.1987); United States v. District of Columbia, 654 F.2d 802, 808 & n. 11 (D.C.Cir.1981); Duran v. Carruthers, 678 F.Supp. 839, 847, 852-53 (D.N.M.1988); see also Massachusetts Ass’n for Retarded Citizens v. King, 643 F.2d 899, 904 (1st Cir.1981)). Other *1052courts, however, have recognized that the state entity’s consent to a consent decree does not eliminate all federalism concerns, particularly the federalism limitations on the power of a federal court to intrude on matters of state governance. See Federalism and Federal Consent Decrees, 1801 n. 32 & 83 (citing Kasper v. Board of Election Comm’rs, 814 F.2d 332, 340-41 (7th Cir.1987); Georgevich v. Strauss, 772 F.2d 1078, 1085 (3d Cir.1985) (en banc); Duran v. Elrod, 713 F.2d 292, 297 (7th Cir.1983); United States v. Michigan, 116 F.R.D. 655, 661 (W.D.Mich.1987)). Our own circuit has expressed skepticism that a state’s consent to a consent decree eliminates federalism concerns. See Stone, 968 F.2d at 861 n. 20 (“We hesitate to follow those cases that hold that the state waives federalism objections when it enters a consent decree because the state actors involved in th[e] case have not clearly consented to the federalism intrusions.”).
Yet even if MTA’s consent to the decree eliminated the federalism problems posed by the entry of the decree itself, MTA’s consent does not extend to any and all remedies ordered for MTA’s failure to comply with the decree. MTA consented to the terms of the decree, including the Load Factor Targets (“LFTs”) and the special master’s role in resolving disputes. MTA did not, however, consent to the particular remedy ordered for its failure to meet the LFTs. Although the terms of any remedial order must be consistent with the terms of the consent decree, it does not follow that the remedial order is a part of the consent decree to which MTA consented. Thus, to whatever extent MTA’s consent to the decree eliminated the potential federalism problems posed by the entry of the decree, MTA’s “waiver,” if any, of its federalism objections does not extend to eliminate the federalism problems raised by the remedial order. Instead, the proper scope of the remedy in the instant dispute over LFTs is governed by the principles in Rizzo and Stone, and federalism concerns must be considered.
Federalism concerns also are not eliminated simply by permitting MTA to submit a proposed remedy before the court orders a remedy of its own. See supra at 1050. State and local governments maintain a substantial interest “in managing their own affairs,” even when a federal court is forced to step in. Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). Merely providing the state entity an opportunity to submit a suggested remedy, which is then subject to substantial alteration by the court, will not always satisfy that interest. The court must take care that its remedy does not interfere in the state entity’s legitimate activities any more than is necessary to remedy the precise violation at issue. See Spallone, 493 U.S. at 280, 110 S.Ct. 625.
Further, unlike MTA, federal courts are not in the business of running and funding local transportation systems. See Stone, 968 F.2d at 860 (recognizing that federalism concerns include concerns of institutional competence). For this reason, a substantial measure of deference to the local agency generally is appropriate. See id. at 863 (approving the numerous opportunities afforded the city to formulate its own remedial plan and bring itself into compliance with the decree). Unfortunately, in the instant dispute, MTA put forward a remedial plan that was based on data covering only 20 of the 79 bus lines at issue. Because of MTA’s failure to prepare a plan that addressed all of its LFT violations, the special master and district court could not fully defer to MTA’s proposed plan. Nonetheless, MTA’s failure to submit an adequate plan does not relieve the district court from its obligation to craft a remedy that is no more intrusive *1053than necessary, which, in my view, the court failed to do.
II.
Before expanding its bus fleet, MTA is required by statute to obtain numerous state and federal transportation and environmental approvals. See, e.g., 23 U.S.C. §§ 103-05 (establishing eligibility and approvals required for expenditure of National Highway System funds); 23 U.S.C. § 134 (requiring a regional transportation planning process and establishing requirements for expenditures of funds in a Transportation Improvement Program); 23 U.S.C. § 149 (establishing eligible uses of Congestion Mitigation and Air Quality Improvement Act funds); 49 U.S.C. § 5303, et seq. (requiring a regional transportation planning process, establishing criteria to be used in the planning process, and setting forth requirements for expenditures of funds); see also 42 U.S.C. § 4321-4347 (National Environmental Policy Act). MTA also is required to obtain certain approvals before making significant expenditures or before reprogramming funds from one purpose to another. See, e.g., 49 U.S.C. § 5303, et seq. For example, the Southern California Association of Governments must first determine that the reallocation of resources will not worsen the South Coast Air Basin’s air quality before the amended expenditure can be approved, and the new expenditures would also require the approval of the Federal Highway Administration, the Federal Transit Administration, and the Environmental Protection Agency. See 23 U.S.C. § 134(h)(6); 49 U.S.C. § 5304(b) & (c). Other statutes require MTA to provide reasonable public notice and allow the public a reasonable opportunity to comment on the new purchases and the shift in funds to buses from other programs. See, e.g., 49 U.S.C. § 5304(d); Cal. Pub. UtiLCode § 130106. The only evidence before the special master and district court regarding the time required to obtain the necessary approvals was that it takes approximately six months for the agencies to approve changes in the programming of urban transportation funds and issue the necessary approvals. But the district court and special master neither gave MTA enough time to secure these approvals nor made the remedy contingent upon obtaining them.
The special master dismissed MTA’s federal and state law compliance concerns in a single paragraph:
The MTA expresses the further concern that environmental statutes may pose obstacles to the implementation of the March 6 Memorandum Decision. Statutory obligations such as the National Environmental Policy Act (NEPA), the National Ambient Air Quality Standards (NAAQS) and the California Environmental Quality Act (CEQA) have always been an important consideration in planning any transportation project in California. Generally, adding additional bus capacity to improve service quantity should contribute positively to environmental quality. If despite the MTA’s good faith efforts to implement an approved remedial plan there are unavoidable delays in complying with statutory requirements, these issues should be addressed in the quarterly reports.
The assumption that the bus purchases would improve environmental quality is very much open to question, given that the remedy was intended to increase the number of buses on the streets in order to reduce the number of standees among the existing ridership, not as part of a program to lure people out of their cars and onto public transportation, and the remedy may very well require a shift in resources from electric light-rail to gas-powered buses. Therefore, the special master had no sound basis for assuming that the various *1054state and federal approvals would be forthcoming. Further, the special master’s argument that any failures in complying with federal law could be addressed at a later time was essentially abrogated by the district court’s order that the new buses be purchased immediately and that the temporary buses be leased within 30 days and placed on the road within 90 days. The only record evidence was that the required approvals usually take six months to obtain. Moreover, neither the special master nor the district court addressed MTA’s statutory public comment obligations.
MTA could not consent away its governmental powers and responsibilities or consent to override or ignore its statutory obligations. Nor could a federal court order MTA to override its statutory obligations, absent a violation of a federal right, which has not been adjudicated in this case. See, e.g., Cleveland County Ass’n for Gov’t by the People v. Cleveland County Bd. of Comm’rs, 142 F.3d 468, 477 (D.C.Cir.1998); Keith v. Volpe, 118 F.3d 1386, 1393 (9th Cir.1997). Compliance with the remedial order, however, would require MTA to violate its statutory obligations.
The majority concludes that MTA’s failure to comply with its statutory obligations would not require it to violate any federal laws because the obligations are part of consensual funding programs. Supra at 1051. Although correct, that statement addresses only part of the picture. It is through such funding programs that MTA receives a substantial portion of its funding. By failing to comply with the statutory funding requirements, MTA risks incurring heavy penalties and losing substantial federal transportation funds. See, e.g., 49 U.S.C. § 5305(e). MTA relies heavily on federal funds, and the loss of these funds could prove crippling. See Revised Decl. of David Yale (describing the sources of MTA’s funds); see also Cornelius v. Los Angeles County MTA, 49 Cal.App.4th 1761, 57 Cal.Rptr.2d 618, 628 (Ct.App.1996) (noting that in FY 1994-95, MTA received 29% of its revenues from the federal government). Moreover, such a loss is inconsistent with the consent decree’s overall purpose to improve the quality of bus service in Los Angeles. As this case demonstrates, improved bus service requires substantial funding.
Further, if MTA “chooses” not to comply with the “strings” attached to its receipt of funds and gives up the funds, there is no evidence that MTA will otherwise be able to purchase and operate the hundreds of new buses ordered by the district court. Although there was evidence before the court to support the conclusion that MTA had not yet exhausted all possible sources of funding for new buses, that evidence also showed that MTA would have to comply with various statutory obligations in order to obtain those funds. There is no evidence in the record that MTA could purchase and operate the new buses without obtaining funds from programs that require MTA to go through planning and approval processes, the very same types of funding programs with which the remedial order prevents MTA from complying. There is no basis in the record for a remedial order that would require MTA to purchase and operate new buses without going through the steps necessary to allow MTA to fund the new buses. On the contrary, MTA’s financial constraints “are a legitimate concern of governmental defendants in institutional reform litigation.” Rufo v. Inmates of Suffolk County, 502 U.S. 367, 392-93, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992).
Beyond the unnecessarily intrusive nature of the remedial order, that the order prevents MTA from complying with the requirements of federal funding programs raises additional federalism problems. Congress uses cooperative funding *1055schemes such as those involved here as a means of promoting federal policy. See New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Congress offers federal funds in exchange for the state or local government’s compliance with the federal policy and conditions that Congress attaches to the use of the funds. See id. at 166, 112 S.Ct. 2408. The consensual nature of these schemes is precisely the reason why their constitutionality is not open to question. See generally South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Here, however, the remedial order took that choice out of MTA’s hands and in effect required MTA to take a certain position regarding federal policy. Where the state or local government unambiguously agrees to forego federal funds in the consent decree itself, fewer federalism concerns arise; when the state or local government agrees to the terms of the consent decree, it makes a choice to not participate in the federal program. But where a federal court’s remedial order prevents participation in the funding scheme, the state or local government is denied its choice. In taking away that choice, the district court effectively shifts power from the state to a single branch of the federal government.
By taking the decision whether to comply with federal policy out of MTA’s hands, the district court also raised troubling political accountability concerns. Making decisions on how to allocate resources among competing interests generally is not the role of federal courts. Nor is it the role of federal courts to make decisions on whether a state or local governmental entity may participate in and comply with federal environmental and transportation schemes. As the Supreme Court has noted, under cooperative funding programs, “[i]f a State’s citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal grant.” New York, 505 U.S. at 168, 112 S.Ct. 2408. But where a federal court makes the choice, “elected state officials cannot regulate in accordance with the views of the local electorate.” Id. at 169, 112 S.Ct. 2408. Accountability thus is diminished as the local officials “bear the brunt of public disapproval” while the federal court that made the decision remains insulated. Id. These concerns are particularly acute in the instant case because this suit arose against the backdrop of a dispute between citizens who wanted MTA to expand rail transportation and those who wanted more buses. By ordering enormous expenditures on buses while, at the same time, putting at risk a significant portion of MTA’s funding, the district court added fuel to the fire, but hampered MTA’s ability to respond.
MTA is not a private entity that has full discretionary authority over its funding; MTA’s funds come with strings attached. The district court could have granted MTA sufficient time to comply with the state and federal approval processes or could have made the remedy contingent on MTA obtaining the required approvals. Instead, the district court put MTA in the position of either placing its funding at risk by purchasing buses without obtaining the necessary approvals or risking contempt of court by delaying its acquisition of buses while the approvals were acquired. In my view, the district court failed to appreciate the unnecessarily intrusive nature of the remedy and failed to give appropriate consideration to federalism principles in fashioning relief. I would reverse and remand the case to permit the district court to craft a remedy that accounts for MTA’s financial and statutory obligations. I therefore dissent.