Association of Irritated Residents v. U.S. E.P.A.

• Decision Date: 06 September 2005
• Docket Number: No. 04-72736.,No. 04-72650.,04-72650.,04-72736.
• Citation: 423 F.3d 989
• Parties: ASSOCIATION OF IRRITATED RESIDENTS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Michael Leavitt, in his official capacity as Administrator of the U.S. Environmental Protection Agency, Wayne Nastri, in his official capacity as Regional Administrator for Region IX of the U.S. Environmental Protection Agency, and Deborah Jordan, in her official capacity as Acting Regional Administrator Region IX of the U.S. Environmental Protection Agency, Respondents, San Joaquin Valley Unified Air Pollution Control District; California Air Resources Board, Intervenors-Respondents. Medical Advocates For Healthy Air; Latino Issues Forum; Sierra Club, Petitioners, v. United States Environmental Protection Agency; Michael Leavitt, Administrator, U.S. Environmental Protection Agency and Wayne Nastri, Regional Administrator, Region IX, U.S. Environmental Protection Agency, Respondents, San Joaquin Valley Unified Air Pollution Control District; California Air Resources Board, Intervenors-Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

423 F.3d 989

ASSOCIATION OF IRRITATED RESIDENTS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Michael Leavitt, in his official capacity as Administrator of the U.S. Environmental Protection Agency, Wayne Nastri, in his official capacity as Regional Administrator for Region IX of the U.S. Environmental Protection Agency, and Deborah Jordan, in her official capacity as Acting Regional Administrator Region IX of the U.S. Environmental Protection Agency, Respondents, San Joaquin Valley Unified Air Pollution Control District; California Air Resources Board, Intervenors-Respondents.

Medical Advocates For Healthy Air; Latino Issues Forum; Sierra Club, Petitioners, v. United States Environmental Protection Agency; Michael Leavitt, Administrator, U.S. Environmental Protection Agency and Wayne Nastri, Regional Administrator, Region IX, U.S. Environmental Protection Agency, Respondents, San Joaquin Valley Unified Air Pollution Control District; California Air Resources Board, Intervenors-Respondents.

No. 04-72650.

No. 04-72736.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 2005.

Filed September 6, 2005.

COPYRIGHT MATERIAL OMITTED

Susan Britton, Earth Justice, Oakland, CA and Brent J. Newell, Center on Race, Poverty & Environment, San Francisco, CA, for the petitioners.

David A. Carson, United States Department of Justice, Denver, Colorado, Philip M. Jay, Fresno, CA, and Gavin G. McCabe, San Francisco, CA, for the respondents.

On Petition for Review of an Order of the Environmental Protection Agency. EPA Nos. Fed.Reg. 69, Clean Air 40 CFR.

Before SCHROEDER, Chief Judge, CANBY, Circuit Judge, and DUFFY,^* Senior Judge.

SCHROEDER, Chief Judge.

This is an expedited review of the Environmental Protection Agency's May 26, 2004 final approval of the San Joaquin Valley's 2003 PM-10 Implementation Plan (Plan). 69 Fed.Reg. 30,006. In approving the Plan, the EPA has set a new deadline for the Valley to attain the national ambient air quality standard for PM-10 pollutants, which are various airborne fine particles of less than ten microns in diameter. The new deadline is 2010.

The petitioners, whose challenges have been consolidated, are the following groups and non-profit organizations: Association of Irritated Residents (AIR), Latino Issues Forum, Medical Advocates for Healthy Air, and the Sierra Club. They maintain that under the Clean Air Act, the absolute outside deadline for PM-10 areas to attain the air quality standard is 2006.

Petitioners raise a number of issues, but the most significant is the EPA's authority to set a deadline that extends past 2006. We deny the petitions for review because we hold that the 2010 deadline was authorized within the structure of the Act, and that petitioners' other challenges to the Plan do not warrant judicial intervention.

Background

The Act establishes a comprehensive program requiring cooperation between states and the federal government to improve the nation's air quality. 42 U.S.C. §§ 7401-7671q. The Act also sets up a scheme under which the public is given significant opportunities to offer input and criticism at various stages of each state's efforts to achieve better air quality. See, e.g., 69 Fed.Reg. 30,006. States carry most of the burden of furthering the Act's purposes by developing implementation plans after extensive public involvement. These petitioners have participated throughout this process for the Valley at each opportunity for notice and comment. The Valley's efforts to control PM-10 pollution over the past decade illustrate the flexible, cooperative and incremental nature of the Act. See, e.g., 42 U.S.C. § 7410(a)(2)(A).

California's San Joaquin Valley is the heart of the state's top agricultural region, producing a wide variety of fruits and vegetables. It is bordered on the west by the coastal mountain ranges, and on the east by the Sierra Nevada mountains including Yosemite, Kings Canyon and Sequoia National Parks. Unfortunately, the same fertile soil that has led the region to be known as the state's "salad bowl" has also contributed to high population growth and industry which, together with the region's topography, have resulted in severe air quality difficulties.

PM-10 pollution results largely from agricultural operations and dust kicked up on roads. It is a serious problem in the Valley. The EPA has recognized that this pollutant can cause damage to lung tissue, chronic illness and premature death. 63 Fed.Reg. 41,326 (August 3, 1998); 62 Fed.Reg. 38652 (July 18, 1997); see also Vigil v. Leavitt, 381 F.3d 826, 830 (9th Cir.2004). Congress addressed this problem in 1990 when it amended the Act to include specific provisions dealing with PM-10 pollution, and set an attainment deadline of December 31, 2001 for seriously deficient areas. 42 U.S.C. § 7513(c)(2).

Pursuant to the 1990 amendments to the Act, the Valley was designated a "moderate" PM-10 area by operation of law. See 56 Fed.Reg. 11101, 11103 (March 15, 1991). California subsequently directed the San Joaquin Valley Unified Air Pollution Control District (District), a state regulatory agency, to develop and adopt a comprehensive air pollution control strategy calling for the implementation, maintenance and enforcement of PM-10 air quality standards in the Valley. The District's plans and plan revisions were eventually forwarded to the California Air Resources Board (CARB) for review and inclusion in the state's air pollution plans. Every state plan or plan revision must be adopted by the state after reasonable notice and hearing. See 42 U.S.C. § 7410(a)(1). Ultimately, the state adopts the plans and forwards them to the EPA for approval.

In 1993, after various exchanges between the District and the EPA, the EPA found that the Valley could not practicably attain the PM-10 standard by the statutory deadline for "moderate areas," which was December 31, 1994. The EPA thus reclassified the Valley as a "serious area." 58 Fed.Reg. 3334, 3337 (Jan. 8, 1993). This reclassification meant that the Valley's attainment deadline was changed to December 31, 2001. 42 U.S.C. § 7513(c)(2); 58 Fed.Reg. at 3340. California submitted a "serious area" plan to the EPA in July 1997. See 69 Fed.Reg. 5412, 5413 (Feb. 4, 2004). That plan included a request for a five year extension of the attainment date under § 188(e) of the Act.

In early 2002, the EPA indicated that it would disapprove the 1997 Plan for the Valley, so the state withdrew it. In July 2002, the EPA found that the Valley had failed to attain the required standards by the December 31, 2001 deadline. 67 Fed.Reg. 48,039 (July 23, 2002). The state was then required to submit plan revisions under § 189(d). The revisions had to provide for attainment, as well as for five percent annual reductions of PM-10 pollutants. Following the required notice and hearing, California adopted and submitted still another plan in August 2003.

In May 2004, after another notice and comment period during which petitioners, among others, raised most of the concerns at issue here, as well as many others, the EPA approved the 2003 Plan. That Plan established a new attainment goal of December 2010. The EPA's approval of the 2003 Plan effectively certified that the new 2010 deadline complied with the Act's general provisions for changing attainment deadlines that have passed. That approval is the subject of this petition for review, in which the petitioners claim, inter alia, that the EPA could not, as a matter of law, have approved the new deadline using those general provisions. There has been extensive briefing by all parties, including the District and CARB, who have intervened in support of the EPA's plan approval.

The PM-10 Attainment Deadline

Under the Act, there are essentially two statutory pathways through which PM-10 attainment deadlines may be changed. The first applies generally to all pollutants, and is the one that the EPA relied on here in setting the 2010 deadline. The second applies only to PM-10 pollutants. The petitioners argue that the existence of the second pathway forecloses use of the first for PM-10 pollutants, and creates an outside attainment date of December 2006.

Under the Administrative Procedure Act, the EPA's final action in this case may be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see, e.g., Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir.2004). We deal with an issue of law. We conclude that the EPA properly relied on the Act's general provisions in approving the 2010 deadline. We turn to the relevant provisions.

Serious PM-10 areas, such as the Valley, that missed the December 31, 2001 deadline, were required to submit further plan revisions to bring about annual PM-10 or PM-10 precursor reductions of five percent. 42 U.S.C. § 7513a(d). The section reads:

Failure to attain — In the case of a Serious PM-10 nonattainment area in which the PM-10 standard is not attained by the applicable attainment date, the State in which such area is located shall, after notice and opportunity for public comment, submit within 12 months after the applicable attainment date [December 31, 2001], plan revisions which provide for attainment of the PM-10 air quality standard and, from the date of such submission until attainment, for an annual reduction in PM-10 or PM-10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for such area.

42 U.S.C. § 7513a(d). This section does not itself, however, establish any new attainment deadline dates. The EPA thus looked to the method of deadline change generally set forth in § 179(d). That section reads:

(d) Consequences for failure to attain — (1) Within one year after the Administrator publishes the notice under subsection (c)(2) of this section (relating to failure to attain), each...