Hall v. U.S. Environmental CFR Protection Agency
| Citation | 263 F.3d 926 |
| Decision Date | 08 January 2001 |
| Docket Number | No. 99-70853,99-70853 |
| Parties | (9th Cir. 2001) ROBERT W. HALL, PETITIONER, v. UNITED STATES ENVIRONMENTAL CFR PROTECTION AGENCY, RESPONDENT |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
NOTE: SEE AMENDED OPINION AT 273 F.3d 1146.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Andrew M. Mergen, Stephen M. McFarlane, Steve Herm, and Kathryn E. Kovacs, Dep't of Justice, Washington, D.C., for the respondent.
Robert W. Hall, Las Vegas, Nevada, petitioner, pro se.
Petition to Review a Final Action of the Environmental Protection Agency EPA No. Clean Air Act 40
Before: Alfred T. Goodwin, Susan P. Graber, and Richard A. Paez, Circuit Judges.
In this pro se petition for review, Robert Hall raises procedural and substantive challenges to the Environmental Protection Agency's ("EPA") approval of a revision to the air quality plan adopted by Clark County, Nevada,2 which modifies existing rules for new stationary sources seeking permits to emit pollutants in Clark County. The most significant issue that Hall raises is whether the EPA adequately assessed Clark County's prospects, under its revised air quality plan, of meeting the Clean Air Act's ("CAA" or "Act") requirements concerning attainment of federally-established air quality standards. The statutory basis for this claim is the Act's requirement that the EPA determine whether air quality plan revisions will "interfere" with attainment requirements. See CAA §§ 110(l), 42 U.S.C. §§ 7410(l).
Although we reject Hall's procedural challenges, we conclude that the EPA's interpretation of its review responsibility under §§ 110(l) is not consistent with the Act. The EPA argues that, so long as a revision to an air quality plan does not relax existing pollution control measures, there necessarily will be no interference with attainment requirements. The EPA concluded that the revisions at issue here did not relax the preexisting rules; and so, without further inquiry, the EPA made a determination of "non-interference." This truncated analysis --which, as the EPA admits, at most assures that the rules as revised will not "exacerbate the existing situation"--does not fulfill the EPA's responsibility under §§ 110(l). That provision requires the EPA to evaluate whether the plan as revised will achieve the pollution reductions required under the Act, and the absence of exacerbation of the existing situation does not assure this result. We therefore remand this matter to the EPA for further consideration.
The Act creates a framework for the "development of cooperative Federal, State, regional, and local programs to prevent and control air pollution." CAA §§ 101(a)(4), 42 U.S.C. §§ 7401(a)(4). Pursuant to §§ 109(b)(1) of the Act, the EPA sets National Ambient Air Quality Standards ("NAAQS"), "the attainment and maintenance of which . . . are requisite to protect the public health." 42 U.S.C. §§ 7409(b)(1). In 1971, the EPA promulgated NAAQS for six criteria pollutants, including--as relevant for our purposes--particulate matter, carbon monoxide, and ozone. 36 Fed. Reg. 8186 (1971); 40 C.F.R. pt. 50.
Each State must submit a State Implementation Plan ("SIP") that "specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region" in the State. CAA §§ 107(a), 42 U.S.C. §§ 7407(a). As summarized by the EPA, "the purposes of a SIP . .. are to make demonstrations (of how attainment, maintenance, and progress will be achieved) and to provide a control strategy that will achieve the necessary reductions and otherwise meet the requirements of the Act." State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 Fed. Reg. 13,498, 13,567 (Apr. 16, 1992) (hereinafter SIP Preamble for 1990 Amendments). By virtue of the States' roles in devising a strategy and adopting an implementation plan, the Supreme Court has emphasized that "[i]t is to the States that the Act assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources." Whitman v. Am Trucking Ass'ns, 531 U.S. 457, 121 S. Ct. 903, 911 (2001).
There are exceptions to that primary responsibility of the States. At least since the 1970 Clean Air Act Amendments ("1970 Amendments"), the Act has required the States to regulate certain sources of emissions, including, for example, new stationary sources and automobiles, and has established a floor of minimum emissions control standards for such sources, below which the SIPs cannot go. See Train v. NRDC, 421 U.S. 60, 79 n.16 (1975).
State SIPs are subject to EPA review and, if inadequate, disapproval. CAA §§ 110(l), 42 U.S.C. §§ 7410(l). "The requirement that the States . . . submit [SIPs] to EPA for review allows for federal oversight of the States' efforts to achieve and maintain the required level of air quality." S. Rep. No. 101-228, at 9, 1990 U.S.C.C.A.N. 3385, 3395.
In the 1970 Amendments, Congress required the States to achieve attainment of NAAQS by 1975. See S. Rep. No. 101-228, at 10 (1989), 1990 U.S.C.C.A.N. 3385, 3396-97. In the 1977 Clean Air Act Amendments ("1977 Amendments"), those deadlines gave way to a new 1982 deadline, with the possibility of extensions until 1987 for certain pollutants. See General Preamble for Proposed Rulemaking on Approval of State Implementation Plan Revisions for Nonattainment Areas, 44 Fed. Reg. 20,372, 20,375 (Apr. 4, 1979) [hereinafter SIP Preamble for 1977 Amendments]. In 1989, based on perceived "widespread failure" to meet air quality standards, Congress again considered amendments to the Act. S. Rep. No. 101-228, at 11, 1990 U.S.C.C.A.N. at 3396-97.
The resulting Clean Air Act Amendments of 1990 ("1990 Amendments") established a new set of attainment deadlines. In general, the 1990 Amendments contemplated that less serious nonattainment areas would attain NAAQS within five years of enactment and that more serious nonattainment areas would have 10 years to attain NAAQS. See, e.g., CAA §§ 172(a)(2)(A), 42 U.S.C. §§ 7502(a)(2)(A) (); CAA §§ 186(a)(1), 42 U.S.C. §§ 7512(a)(1) (); CAA §§ 188(c), 42 U.S.C. §§ 7513(c) (). In addition, the 1990 Amendments modified the statutory minimum emission controls, including the minimum emission controls for new stationary sources. See, e.g., S. Rep. No. 101-228, at 24-25, 1990 U.S.C.C.A.N. at 3410-11.
The 1990 Amendments also established an elaborate timetable for States to submit various new planning documents to the EPA, revisions to the pollution control requirements of existing SIPs, and demonstrations of interim progress and, ultimately, attainment.3 As summarized by the Senate Report: "The emphasis in the bill . . . is not on the deadlines but on what happens in the period before deadlines." S. Rep. No. 101-228, at 12-13, 1990 U.S.C.C.A.N. at 3398-99."[T]he nonattainment provisions of the bill are designed . . . to require regular and monitored progress toward attainment . . . ." Id.
At the time of enactment of the 1990 Amendments, Clark County's new source review program consisted of rules that were last approved by the EPA in 1981. 46 Fed. Reg. 21,758 (Apr. 14, 1981). The revised new source review program at issue here was approved by the EPA on May 11, 1999. 64 Fed. Reg. 25,210 (May 11, 1999).
Parts of Clark County, including the Las Vegas Valley, have been in nonattainment for particulate matter and carbon monoxide from the time of the EPA's approval of the 1981 Rules to, as far as the record shows, the present. 4 The 1990 Amendments required Clark County to submit revisions to its new source review program by November 1992. Clark County missed this deadline. But, from 1993 until submission to the EPA in 1999, Clark County engaged in an involved process of revising its new source review program. During this period, Clark County received substantial input from the EPA, the regulated community, and the public.
Hall timely filed this pro se petition for review. After initial briefing, we asked the EPA and Hall to submit supplemental briefs addressing the nature and scope of the EPA's SIP review responsibility under CAA §§ 110(l). We also directed the EPA to identify any parts of the record that demonstrate that the EPA considered whether the revised new source review program "interfere[s]" with current requirements.
In its supplemental brief, the EPA explained that it approved the Clark County new source review revisions based on the following interpretation of §§ 110(l):"If the SIP revision does not relax the existing SIP . . . then the SIP revision does not `interfere' with attainment [or] reasonable further progress . . . requirements and no further inquiry is needed." The EPA reasoned that, if there was no relaxation of air quality regulations, the revision would not "exacerbate the existing situation by allowing increased emissions" and, consequently "the SIP revision would not interfere with reasonable further progress or attainment." Because the EPA determined that Clark County's revised new source review rules did not relax the rules that had been approved in 1981, it concluded, without further inquiry, that the revisions would not interfere with attainment or reasonable further progress requirements.
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