Disimone v. Browner, 96-70974.

Citation121 F.3d 1262
Decision Date31 July 1997
Docket NumberNo. 96-70974.,96-70974.
PartiesBarry S. DISIMONE and Donald H. Steuter, Petitioners, v. Carol M. BROWNER, in her official capacity as Administrator of the United States Environmental Protection Agency, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

COPYRIGHT MATERIAL OMITTED

David S. Baron, Tucson, AZ, for petitioners.

Karen L. Egbert, United States Department of Justice, Washington, DC, for respondent.

Before: PREGERSON, FERGUSON, and KLEINFELD, Circuit Judges.

FERGUSON, Circuit Judge:

Barry Disimone and Donald Steuter ("Petitioners") filed this action against the United States Environmental Protection Agency ("EPA"), asking this court to order EPA to disapprove an Arizona State Implementation Plan and reinstate a withdrawn Federal Implementation Plan. We hold that EPA acted in disobedience of an order of this court in withdrawing the federal plan and approving a state plan and we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Following several years of unacceptably high levels of carbon monoxide in Maricopa and Pima Counties, Arizona, a citizen suit was filed against EPA for failing to perform its regulatory duties under the Clean Air Act, 42 U.S.C. §§ 7401 et seq. Delaney v. EPA, 898 F.2d 687 (9th Cir.1990) cert. denied 498 U.S. 998, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990). Due to the state plan's inadequacy under the Act, this court ordered EPA to disapprove the Arizona State Implementation Plan ("state plan") it had approved for Maricopa and Pima counties and to promulgate a Federal Implementation Plan ("federal plan") consistent with its own guidelines. Id. at 694.

On November 15, 1990, Congress amended the Clean Air Act. Subsequently, EPA filed a motion in this court requesting the Delaney panel to recall its mandate and amend its judgment to allow EPA to take action on remand consistent with the new statutory scheme created by the 1990 amendments. The argument made to the Delaney panel was that 42 U.S.C. § 7515, the Savings Clause enacted as part of the 1990 Amendments, did not apply to the requirements mandated by Delaney. In addition, the EPA contended that the 1990 Amendments applied to the implementation plans required by Delaney and that the panel must give deference to the agency interpretation of the 1990 Amendments to the Clean Air Act. The EPA now makes the same arguments in this case. On March 20, 1991, the Delaney panel denied EPA's Motion to Recall Mandate and Amend Judgment. This order became final when EPA did not seek en banc review or petition the Supreme Court for a writ of certiorari. The Supreme Court had denied a petition for certiorari in regard to the first Delaney mandate on December 2, 1990, two weeks after the amendments to the Clean Air Act were passed. Reilly v. Delaney, 498 U.S. 998, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990).

Pursuant to the mandate in Delaney, EPA disapproved the state plan for the Maricopa and Pima county nonattainment areas and promulgated a federal plan. 56 Fed.Reg. 5458 (1991). The federal plan mandated the sale of low volatility and high-oxygen content gasoline in the Maricopa and Pima nonattainment areas. That plan also contained contingency provisions, requiring EPA to delay transportation projects and adopt measures to compensate for unanticipated emission reduction shortfalls in the event that the nonattainment areas experienced certified violations of the carbon monoxide standards during any applicable season after 1991. Id. at 5470. The federal plan included a timetable under which highway projects would automatically be delayed through the Department of Transportation upon final notification by EPA that additional control measures were necessary to maintain the carbon monoxide standards for the subject areas. Id. at 5471-72. The timetable also required that within ten months of the determination that additional control measures were needed, the EPA would issue a final rule promulgating all additional measures available to EPA which could correct the emission reduction shortfall.

The federal contingency provisions were triggered by EPA's finding of two certified violations of the carbon monoxide standard in the Maricopa nonattainment area. 58 Fed. Reg. 34,547, 34,548 (June 28, 1993). However, EPA violated the Delaney mandate and went ahead and interpreted the 1990 Amendments in the manner in which the Delaney panel had refused to do. On August 9, 1993, EPA issued an order to the Governor of Arizona, directing Arizona to submit a revision to the state plan which EPA had disapproved pursuant to Delaney. The Maricopa Association of Governments submitted a state plan revision in November, 1993, and an amendment to that revision on April 4, 1994, which included control and contingency measures.

On April 9, 1996, EPA proposed to rescind the federal contingency provisions in their entirety and approve the contingency provisions contained in Arizona's state plan revision. 61 Fed.Reg. 15,745 (Apr. 9, 1996). On July 28, 1996, EPA made a formal finding that the area had failed to attain the carbon monoxide air quality standards by the statutory deadline of December 31, 1995, and reclassified it as a "serious" nonattainment area, under the 1990 amendments to the Act. 61 Fed.Reg. 39,343 (1996).

On October 3, 1996, EPA took final action approving two contingency measures included in the state plan revision and rescinding the federal contingency measures. 61 Fed. Reg. 51,599 (Oct. 3, 1996).

DISCUSSION

Petitioners challenge the EPA action approving Arizona's contingency measures and withdrawing the federal contingency plan adopted pursuant to Delaney on several grounds. Petitioners contend: (1) EPA violated its statutory duties by approving the state plan revision's contingency measures without acting on the remainder of the plan; (2) EPA violated 42 U.S.C. § 7515 by approving a plan that did not insure equivalent or greater emission reductions than the plan ordered by the Delaney court; (3) EPA violated 42 U.S.C. § 7410(l) by approving a plan revision which interferes with an applicable requirement concerning attainment and reasonably further progress; and (4) EPA arbitrarily and capriciously approved inadequate contingency measures. EPA argues that it acted within its statutory authority under the Clean Air Act, as amended in 1990, and that requiring adherence to the federal plan rather than allowing approval of the state plan under the amendments to the Act would be inconsistent with Congress's intent in enacting the 1990 amendments.

This court has jurisdiction under 42 U.S.C. § 7607(b)(1), which provides that a petition for review of the EPA Administrator's action in approving or promulgating any implementation plan under 42 U.S.C. § 7410, or any other final action of the Administrator which is locally or regionally applicable, may be filed only in the United State Court of Appeals for the appropriate circuit.

We hold that EPA acted contrary to a direct mandate of this court and its action violated the law of the case. In addition, EPA is collaterally estopped from claiming its action was required by the Act's statutory scheme, as amended in 1990, because the Delaney court denied its motion to amend the judgment to conform to those amendments.

A. Law of the Case

Under the law of the case doctrine, "one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case." Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.1979). The doctrine is grounded in the need for litigation to come to an end. "An appellate court cannot efficiently perform its duty to provide expeditious justice to all `if a question once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal.'" Id. (quoting Lehrman v. Gulf Oil Corporation, 500 F.2d 659, 662-63 (5th Cir.1974)) (internal citations omitted). In order for the doctrine to apply, the issue in question must have been "`decided explicitly or by necessary implication in the previous disposition.'" Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir.1990) (quoting Liberty Mutual Insurance Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir.1982)).

In its Motion to Recall Mandate and Amend Judgment, EPA petitioned the Delaney panel to "allow the Agency to take action on remand consistent with the new statutory scheme created by the 1990 Amendments." That motion was denied. However, instead of acting in accordance with the Delaney mandate, EPA approved a state plan under the new statutory scheme. EPA violated the order of this court and violated the law of the case. This it cannot be allowed to do.

Nor should this court reexamine whether EPA should have been able to replace the court-ordered federal contingency provisions with state provisions which allegedly conform to the requirements of the Act, as amended. "No litigant deserves an opportunity to go over the same ground twice, hoping that the passage of time or changes in the composition of the court will provide a more favorable result the second time." Gindes v. United States, 740 F.2d 947, 949 (Fed.Cir.1984) (quoting United States v. Turtle Mtn. Band of Chippewa Indians, 222 Ct.Cl. 1, 612 F.2d 517, 520 (Court of Claims 1979)). A court may have discretion to reopen a previously resolved question only where (1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. Thomas v. Bible, 983 F.2d 152, 155 (9th Cir.1993). None of these exceptions apply in this case.1

Typically the law of the case doctrine is confined to decisions in the same case as the one in which it is applied. U.S. v. Guy, 903 F.2d 1240, 1242 (9th Cir.1990). This case is atypical because the...

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