Safe Air for Everyone v. U.S. E.P.A.

• Decision Date: 30 January 2007
• Docket Number: No. 05-75269.,05-75269.
• Citation: 488 F.3d 1088
• Parties: SAFE AIR FOR EVERYONE; American Lung Association of Idaho; No&#235;l Sturgeon, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Stephen L. Johnson, Administrator of the United States Environmental Protection Agency; Elin D. Miller,<SMALL><SUP>*</SUP></SMALL> Regional Administrator of the United States Environmental Protection Agency, Region X, Respondents, State of Idaho, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.3d 1088

SAFE AIR FOR EVERYONE; American Lung Association of Idaho; Noël Sturgeon, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Stephen L. Johnson, Administrator of the United States Environmental Protection Agency; Elin D. Miller,^* Regional Administrator of the United States Environmental Protection Agency, Region X, Respondents State of Idaho, Intervenor.

No. 05-75269.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2006.

Filed January 30, 2007.

Amended May 29, 2007.

David S. Baron, Earthjustice, Washington, DC, for the petitioners.

Paul Cirino, Environmental Defense Section, U.S. Department of Justice, Washington, DC, for the respondents.

Lisa J. Kronberg, Deputy Attorney General, Idaho Department of Environmental Quality, Boise, ID, for the intervenor.

On Petition for Review of an Order of the Environmental Protection Agency. EPA No. ID-03-003.

Before: ARTHUR L. ALARCÓN, PAMELA ANN RYMER, and MARSHA S. BERZON, Circuit Judges.

ORDER

Petitioners' Petition for Clarification is GRANTED. The opinion filed on January 30, 2007 and reported at 475 F.3d 1096 is hereby amended as follows:

1) On 475 F.3d at 1099, the sentence beginning "Because our review . . ." is replaced with: "Because our review of an administrative agency's decision begins and ends with the reasoning that the agency relied upon in making that decision, see SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1103-04 (9th Cir.2006), we grant the petition for review, vacate EPA's approval of the amendment, and remand for EPA's reconsideration of SAFE's objections under a correct understanding of the preexisting Idaho SIP."

2) On 475 F.3d at 1099, the sentence beginning "Finally, we explain why our interpretation . . ." is replaced with: "Finally, we explain why our interpretation of the SIP as it existed at the time of the 2005 amendment resolves this case and requires that we grant the petition for review, vacate EPA's approval of the amendment, and remand for further proceedings."

3) On 475 F.3d at 1109-10, the sentence beginning "We therefore grant . . ." is replaced with: "We therefore grant SAFE's petition, vacate EPA's approval of the amendment, and remand to EPA for its consideration of Idaho's proposed amendment as a change in the preexisting SIP, rather than as simply a `clarification' of it."

4) On 475 F.3d at 1110, the final line of the opinion is changed to: "Petition for Review GRANTED; EPA's approval VACATED; REMANDED to EPA."

Petitioners' Petition for Panel Rehearing is DENIED as moot. No further petitions for rehearing or rehearing en banc will be accepted.

AMENDED OPINION

BERZON, Circuit Judge:

The Clean Air Act ("CAA" or "the Act"), 42 U.S.C. §§ 7401-7671q, authorizes the creation of air quality standards for a number of pollutants, including particulate matter produced as a byproduct of burning. To implement these standards, the Act establishes a system of State Implementation Plans ("SIPs"), whereby states submit, subject to the United States Environmental Protection Agency's ("EPA") review and approval, proposed methods for maintaining air quality. Once approved by EPA these plans "[h]av[e] `the force and effect of federal law.'" Trs. for Alaska v. Fink, 17 F.3d 1209, 1210 n. 3 (9th Cir. 1994) (quoting Union Elec. Co. v. EPA, 515 F.2d 206, 211 (8th Cir.1975), aff'd, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976)).

In this case, we are presented with a preexisting SIP containing language that prohibits open burning generally and contains no exception allowing farmers to burn the residue left in their fields after harvesting their crops. Petitioner, Safe Air for Everyone ("SAFE"), challenges EPA's decision to approve an amendment to that SIP authorizing such burning. SAFE argues that certain CAA provisions which prohibit amending SIPs so that they interfere with meeting air quality standards forbid EPA's action, at least absent further analysis of field burning's impact on Idaho's air quality; EPA maintains that its approval of the amendment does not contravene any CAA provisions.

We hold that as it presently stands, EPA's approval is legally unsustainable. EPA grounded its approval of this amendment on the premise that the preexisting Idaho SIP did not ban field burning, so that the amendment only clarified what was already the case. This view of the preexisting SIP is one with which we cannot agree. Because our review of an administrative agency's decision begins and ends with the reasoning that the agency relied upon in making that decision, see SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1103-04 (9th Cir.2006), we grant the petition for review, vacate EPA's approval of the amendment, and remand for EPA's reconsideration of SAFE's objections under a correct understanding of the preexisting Idaho SIP.

The current treatment of field burning in the Idaho SIP came about as the result of a thirty-five-year regulatory evolution. After reviewing the factual administrative record, we first explain the regulatory process established by the CAA and then trace the development of the current SIP provisions related to field burning in Idaho. We then closely examine how the preexisting Idaho SIP treated field burning prior to 2005, when EPA approved an amendment to the SIP that explicitly authorized the practice. Finally, we explain why our interpretation of the SIP as it existed at the time of the 2005 amendment resolves this case and requires that we grant the petition for review, vacate EPA's approval of the amendment, and remand for further proceedings.

I.

A.

Open burning of agricultural fields is a common practice in Idaho, particularly among bluegrass farmers in the northern portion of the state. Those farmers maintain that burning the grass residue improves the productivity of their fields and has certain environmental benefits, views with which the Idaho legislature has expressed agreement. See IDAHO CODE ANN. § 22-4801 (2006) ("The legislature finds that the current knowledge and technology support the practice of burning crop residue to control disease, weeds, pests, and to enhance crop rotations.... The legislature finds that due to the climate, soils, and crop rotations unique to north Idaho counties, crop residue burning is a prevalent agricultural practice and that there is an environmental benefit to protecting water quality from the growing of certain crops in environmentally sensitive areas."); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1043-47 (9th Cir. 2004) (recognizing that "the Growers realize farming benefits from reusing grass residue in the process of open burning").

Despite these attested benefits, the administrative record establishes that such field burning is also a source of particulate matter that contributes to air pollution. SAFE submitted evidence indicating that the burning of agricultural fields in Idaho creates significant air quality problems. That evidence documents: (1) that clouds of smoke cover large portions of rural Idaho and surrounding states during burning season; (2) that area doctors believe that this smoke has had particularly severe health consequences for individuals with respiratory ailments; (3) that some individuals with such ailments have fled their homes during burning season to avoid the smoke; and (4) that a coroner's report linked at least one fatality to field burning. EPA has recognized that substantial pollution and health problems are created by the practice. See EPA, AGRICULTURAL BURNING: EPA MAKES NORTHWEST FIELD BURNING A TOP PRIORITY 2 (2000) ("[F]ield burning can cause serious environmental and health effects.... Scientific studies — along with thousands of complaints — indicate that smoke is unhealthy.... Exposure to fine particles, either alone or combined with other air pollutants, has been linked to difficulty in breathing, aggravated asthma, increased emergency room visits and hospital admissions, and, in some cases, premature deaths.").

B.

Under the CAA, EPA has the authority to issue national air quality standards setting the maximum allowable concentration of a given pollutant. 42 U.S.C. § 7409(a).¹ Using this authority, EPA has issued limits for particulate matter. 40 C.F.R. §§ 50.6, 50.7.

To assure that such air quality standards are met, the CAA establishes a system heavily dependent upon state participation. See 42 U.S.C. § 7407(a) ("Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State ...."); see generally Train v. Natural Res. Def. Council, 421 U.S. 60, 64-70, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975). As a central aspect of this system, states promulgate SIPs that "provide[ ] for implementation, maintenance, and enforcement" of the CAA's air quality standards within the state. 42 U.S.C. § 7410(a)(1). Although states retain significant flexibility in establishing the details of these plans, the CAA, and EPA regulations, outline many required features. Id. § 7410(a)(2)(6); 40 C.F.R. pt. 51. Among them is the mandate that state plans provide for regular revisions to reflect evolving air quality conditions and standards. 42 U.S.C. § 7410(a)(2)(H). These revisions need not be wholesale recastings of SIPs; instead, the CAA allows the states to submit, and EPA to review, piecemeal amendments dealing with discrete SIP provisions, leaving most of the plan untouched. See Hall v. U.S. EPA, 273 F.3d 1146, 1159-60 (9th Cir.2001).

Before a SIP becomes effective, EPA must determine that it meets the CAA's requirements. 42 U.S.C. § 7410(k)(3). EPA must also approve plan amendments and "shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress...