686 F.3d 668 (9th Cir. 2011), 09-71383, Association of Irritated Residents v. U.S. E.P.A.

Docket Nº:09-71383, 09-71404.
Citation:686 F.3d 668
Opinion Judge:THOMAS, Circuit Judge:
Party Name:ASSOCIATION OF IRRITATED RESIDENTS, an unincorporated association; El Comit
Attorney:Brent J. Newell and Marybelle N. Nzegwu, San Francisco, CA, and David Pettit, Melissa Lin Perrella, and Adriano Martinez, Santa Monica, CA, for the petitioners. Austin D. Saylor, United States Department of Justice, for the respondent.
Judge Panel:Before: SIDNEY R. THOMAS and N. RANDY SMITH, Circuit Judges, and ROBERT S. LASNIK, Chief District Judge.[*]
Case Date:February 02, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 668

686 F.3d 668 (9th Cir. 2011)

ASSOCIATION OF IRRITATED RESIDENTS, an unincorporated association; El Comité Para El Bienestar De Earlimart, an unincorporated association; Community & Children's Advocates Against Pesticide Poisoning, an unincorporated association, Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Lisa Jackson, in her official capacity as Administrator of the U.S. EPA; Laura Yoshii, in her official capacity as Regional Administrator of Region IX of the U.S. EPA, Respondents.

Natural Resources Defense Council, Inc., Petitioner,

v.

United States Environmental Protection Agency, Respondent.

Nos. 09-71383, 09-71404.

United States Court of Appeals, Ninth Circuit.

February 2, 2011

Argued and Submitted Nov. 1, 2010.

Amended Jan. 27, 2012.

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[Copyrighted Material Omitted]

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Brent J. Newell and Marybelle N. Nzegwu, San Francisco, CA, and David Pettit, Melissa Lin Perrella, and Adriano Martinez, Santa Monica, CA, for the petitioners.

Austin D. Saylor, United States Department of Justice, for the respondent.

On Petition for Review of an Order of the Environmental Protection Agency. EPA No. EPA-R09-OAR-2008-0677.

Before: SIDNEY R. THOMAS and N. RANDY SMITH, Circuit Judges, and ROBERT S. LASNIK, Chief District

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Judge.[*]

OPINION

THOMAS, Circuit Judge:

The Association of Irritated Residents, El Comité para el Bienestar de Earlimart, the Community of Children's Advocates Against Pesticide Poisoning, and the Natural Resources Defense Council, petition for review of a final action by the Environmental Protection Agency approving in part and disapproving in part revisions to California's State Implementation Plan for meeting air quality standards for ozone under the Clean Air Act. We have jurisdiction under 42 U.S.C. § 7607(b)(1). We grant the petition for review and remand to EPA for further consideration.

I

A

Congress enacted the Clean Air Act (the " Act" ) to help protect and enhance the nation's air quality. 42 U.S.C. §§ 7401-7671q. The Act requires the Environmental Protection Agency (" EPA" ) to establish National Ambient Air Quality Standards (" NAAQS" ) for a variety of pollutants, one of which is ozone. 1 Id. §§ 7408-09. EPA then designates areas as " attainment" or " nonattainment" based on whether the areas meet the clean air standards for each particular pollutant. Id. § 7407(d). EPA classifies nonattainment areas based on the severity of the area's pollution, from Marginal to Extreme. Id. § 7511(a). The area at issue in this litigation— the Los Angeles-South Coast Air Basin (" South Coast" )— is classified as Extreme. 73 Fed.Reg. 63,408, 63,409 (Oct. 24, 2008) (to be codified at 40 C.F.R. pt. 52).

Under the Act, states have primary responsibility for ensuring that the quality of their air satisfies the NAAQS, and they must detail their efforts in a State Implementation Plan (" SIP" ) for each region within that state. 42 U.S.C. § 7410(a). States must submit these SIPs and SIP revisions to EPA for review. EPA may either fully approve the plan, partially approve and partially disapprove the plan, or conditionally approve the plan. Id. § 7410(k). Once approved, SIPs become enforceable as federal law. Id. § 7413.

An EPA determination that a state has failed to submit a required plan, or EPA disapproval of a submitted plan, triggers two time periods. First, a " sanctions clock" begins during which time the state must either remedy the deficiency or face sanctions. Id. § 7509(a)-(b). Second, a " FIP clock" begins by the end of which EPA must either approve a state-submitted SIP or promulgate a Federal Implementation Plan (" FIP" ). Id. § 7410(c)(1). Additionally, EPA must issue a " SIP call," and thereby require the state to make necessary revisions, if it finds that a previously approved SIP is " substantially inadequate" to attain or maintain air quality standards. Id. § 7410(k)(5).

The Act also contains " conformity" requirements. Under these conformity provisions, the federal government may not

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approve, accept, or fund any transportation plan, program, or project unless it conforms to an approved SIP. Id. § 7506(c). To make conformity determinations, transportation agencies must look to an approved SIP to find the maximum amount of pollution allowed from motor vehicle emissions. This motor vehicle emissions budget (" MVEB" ) is determined by the states in their SIPs by identifying the total allowable emissions consistent with meeting the statutory clean air requirement, and then allocating that total among various types of sources, such as motor vehicles. 40 C.F.R. § 93.101. Because SIPs sometimes take years to review, EPA may make preliminary adequacy determinations regarding the MVEBs found in the SIPs. Id. § 93.118. After further review, EPA may declare the MVEB to be inadequate. Id. § 93.118(e)(3).

In addition to the SIPs and conformity requirements applicable to all areas, the Act contains further requirements for nonattainment areas, depending on the severity of the ozone problem in the area. 42 U.S.C. §§ 7511-7511f. Two of these requirements are at issue in this case. The first requirement is for these nonattainment areas to submit SIP revisions demonstrating attainment of the ozone standard by the applicable date. These " attainment plans" have two main parts: (1) a control strategy to reach compliance; and (2) an attainment demonstration to show that under the strategy the area will meet the NAAQS by the statutory deadline. Id. §§ 7511a(c)(2)(A), (d)-(e); 7410(a)(2)(A).

The second requirement for these nonattainment areas is to develop enforceable transportation strategies and control measures " to offset any growth in emissions from growth in vehicle miles traveled ... and to attain reduction in motor vehicle emissions as necessary." Id. § 7511a(d)(1)(A). Suggested transportation control measures include programs for improved public transit, restrictions of certain lanes for high occupancy vehicles, and programs for secure bicycle storage facilities. Id. § 7408(f)(1)(A).

B

In 1994, California submitted a SIP revision that included an ozone attainment demonstration for the South Coast nonattainment area and a " Pesticide Element" designed to reduce emissions from pesticide applications. In 1997, EPA approved the SIP revision with respect to both the ozone attainment demonstration and the Pesticide Element. In 1999, California sought again to update the SIP with new emissions inventories and a new ozone attainment demonstration. EPA approved these elements in 2000. All of these plans and revisions form the 1997/1999 South Coast Ozone SIP (" 1997/1999 SIP" ).

After EPA approved the 1997/1999 SIP, California conducted new modeling, demonstrating that the existing SIP underestimated vehicle pollution in the area. Specifically, California realized that, with respect to ozone:

[T]he basic strategy of the 1997 Plan and the 1999 amendments must be significantly overhauled to address the new realities of higher mobile source emissions and lower carrying capacities for ozone as indicated by new modeling and meteorological episodes. Additional reductions, above and beyond those committed to in the 1997 Plan and 1999 amendments, will be necessary to demonstrate attainment with the federal ozone standard and present a significant challenge.

Concluding that " a plan update [was] necessary," California submitted the 2003 SIP Revision to EPA in 2004. The 2003 SIP Revision consisted, in relevant part, of

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three things: the 2003 Attainment Plan, PEST-1, and a demonstration that no transportation control measures were required. Petitioners seek review of EPA's final determination as to each of these three elements.

The 2003 Attainment Plan revised the existing SIP in two ways. First, it updated the attainment demonstration (and therefore the MVEBs) to account for the increased emissions projections under the new modeling. Second, it added additional control measures to offset the increase in predicted pollution. In 2004, EPA found the MVEBs in the attainment demonstration adequate for purposes of the conformity provisions, but did not make a final decision as to the 2003 Attainment Plan as a whole. In 2008, California withdrew some of the 2003 Attainment Plan's key elements, including many of the control measures.

PEST-1 was a control strategy that called for continued implementation of the Pesticide Element approved in the 1997/1999 SIP. In 2008, we concluded that the portion of the Pesticide Element representing the enforceable commitment (the Wells Memorandum), was not part of the 1997/1999 SIP. See El Comité Para El Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062 (9th Cir.2008).

Finally, because nonattainment areas must propose enforceable transportation control measures " to offset any growth in emissions from growth in vehicle miles traveled," California submitted to EPA a demonstration purporting to show that there would be no such growth in emissions. Although California acknowledged that vehicle miles traveled would increase by about 30%, it showed that aggregate motor vehicle emissions would decrease.

In 2008, EPA proposed to approve the control measures that were not withdrawn from the 2003 Attainment Plan (including PEST-1), but disapprove the attainment demonstration (and therefore the MVEBs) in the 2003 Attainment Plan because the demonstration...

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