779 F.3d 1119 (9th Cir. 2015), 13-70544, Natural Resources Defense Council v. United States Environmental Protection Agency

Docket Nº:13-70544
Citation:779 F.3d 1119
Opinion Judge:Barry G. Silverman, Circuit Judge:
Party Name:NATURAL RESOURCES DEFENSE COUNCIL and COMMUNITIES FOR A BETTER ENVIRONMENT, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; LISA P. JACKSON, Administrator, U.S. Environmental Protection Agency; JARED BLUMENFELD, Regional Administrator, Region IX, U.S. Environmental Protection Agency, Respondents, NATIONAL ENVIRONMENTAL DEVELOPMENT ASSOCIATION
Attorney:Paul Cort (argued) and Adriano Martinez, Earthjustice, San Francisco, California, for Petitioners. Heather Gange (argued) and Sam Hirsch, Acting Assistant Attorney General, United States Environmental Protection Agency, Environmental Defense Section, Environment & Natural Resources Division; Kara...
Judge Panel:Before: Mary M. Schroeder, Senior Circuit Judge, Barry G. Silverman, Circuit Judge, and Marvin J. Garbis, Senior District Judge.[*] Opinion by Judge Silverman.
Case Date:March 11, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

The United States Environmental Protection Agency (EPA) approved of the South Coast Air Quality Management District’s Rule 317 as a revision to California’s State Implementation Plan for the Clean Air Act (CAA). The EPA approved the Rule pursuant to section 172(e) of the CAA - the so-called “anti-backsliding” provision - which allows for not less stringent alternative controls, finding that the... (see full summary)

 
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779 F.3d 1119 (9th Cir. 2015)

NATURAL RESOURCES DEFENSE COUNCIL and COMMUNITIES FOR A BETTER ENVIRONMENT, Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY; LISA P. JACKSON, Administrator, U.S. Environmental Protection Agency; JARED BLUMENFELD, Regional Administrator, Region IX, U.S. Environmental Protection Agency, Respondents, NATIONAL ENVIRONMENTAL DEVELOPMENT ASSOCIATION'S CLEAN AIR PROJECT; SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT; SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT, Respondents-Intervenors

No. 13-70544

United States Court of Appeals, Ninth Circuit

March 11, 2015

Argued and Submitted, San Francisco, California: February 12, 2015.

SUMMARY[**]

Environmental Law

The panel denied a petition for review of an order of the United States Environmental Protection Agency approving the South Coast Air Quality Management District's Rule 317 as a revision to California's State Implementation Plan for the Clean Air Act.

The EPA approved the rule pursuant to § 172(e) of the Clean Air Act after finding that the pollution controls it imposed were " not less stringent than" § 185 of the Clean Air Act, which requires that major stationary sources of pollution in severely polluted areas pay fees for their emissions.

Applying Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), deference, the panel held that the EPA reasonably found that § 172(e) contained an ambiguous gap. The panel also held that the EPA's interpretation of that ambiguity was reasonable -- i.e., that the Clean Air Act's anti-backsliding provisions, allowing for not less stringent alternative controls, applied when air quality standards have been strengthened as well as when they have been relaxed.

Paul Cort (argued) and Adriano Martinez, Earthjustice, San Francisco, California, for Petitioners.

Heather Gange (argued) and Sam Hirsch, Acting Assistant Attorney General, United States Environmental Protection Agency, Environmental Defense Section, Environment & Natural Resources Division; Kara Christenson and David Coursen, United States Equal Protection Agency, Office of General Counsel, Washington, D.C., for Respondents.

Kurt Weise, General Counsel, Barbara Baird (argued), Chief Deputy Counsel, William Wong, Principal Deputy Counsel, and Megan Lorenz Angarita, Senior Deputy Counsel, South Coast Air Quality Management District, Diamond Bar, California, for Respondent-Intervenor South Coast Air Quality Management District.

Annette Ballatore-Williamson (argued), District Counsel, and Jessica Hafer Fierro, Assistant District Counsel, San Joaquin Valley Unified Air Pollution Control District, Fresno, California, for Respondent-Intervenor San Joaquin Valley Unified Air Pollution Control District.

Leslie Sue Ritts, Ritts Law Group, PLLC, Alexandria, Virginia, for Respondent-Intervenor National Environmental Development Association's Clean Air Project.

Curtis L. Coleman, Law Offices of Curtis L. Coleman, Los Angeles, California, for Amicus Curiae Southern California Alliance of Publicly Owned Treatment Works.

Robert Wyman, Jr. and John Heintz, Latham & Watkins LLP, Los Angeles, California, for Amici Curiae Los Angeles Chamber of Commerce, Los Angeles County Business Federation, California Council for Environmental and Economic Balance, the California Small Business Alliance, and Regulatory Flexibility Group.

Before: Mary M. Schroeder, Senior Circuit Judge, Barry G. Silverman, Circuit Judge, and Marvin J. Garbis, Senior District Judge.[*] Opinion by Judge Silverman.

OPINION

Page 1120

On Petition for Review of an Order of the Environmental Protection Agency

Barry G. Silverman, Circuit Judge:

Petitioners Natural Resources Defense Council and Communities for a Better Environment petition for review of the United States Environmental Protection Agency's approval of the South Coast Air Quality Management District's Rule 317 as a revision to California's State Implementation Plan for the Clean Air Act. EPA approved the rule pursuant to § 172(e) of the CAA after finding that the pollution controls it imposes are " not less stringent than" § 185 of the CAA, which requires that major stationary sources of pollution in

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severely polluted areas pay fees for their emissions.

Everyone agrees that § 172(e) of the CAA (the so-called " anti-backsliding" provision) allows EPA to approve alternate pollution controls that are " not less stringent than the controls" already in effect when a national primary ambient air quality standard is relaxed. But what is EPA's authority when the standard is tightened ? May EPA approve " not less stringent" standards then, too? Section 172(e) doesn't say one way or the other.

Petitioners do not argue that Rule 317 is weaker than the controls that existed before. (The controls in Rule 317 are, in fact, more stringent.) Rather, petitioners' argument is statutory, not factual. They argue that EPA lacked the statutory authority to approve any alternative rule (even one imposing more stringent controls) because, they assert, § 172(e) unambiguously applies only when air quality standards are relaxed, not when they are tightened.

Applying the deference called for by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we hold today that EPA reasonably found that § 172(e) contains an ambiguous gap. We also hold that EPA's interpretation of that ambiguity was reasonable -- i.e., that the CAA's anti-backsliding provision, allowing for not less stringent alternative controls, applies when air quality standards have been strengthened as well as when they have been relaxed. We deny the petition for review.

I. Background

A. Clean Air Act Background

The Clean Air Act requires that EPA establish primary and secondary national ambient air quality standards (" NAAQS" ) for pollutants, including ozone, determining what levels of these may safely be in the air. CAA § § 108--109, 42 U.S.C. § § 7408--7409. Areas where the air quality meets or exceeds the NAAQS (i.e., where pollutant levels are low) have attained the NAAQS, and so are known as " attainment areas," while areas with pollutant levels greater than prescribed in the NAAQS are " nonattainment areas." CAA § 107, 42 U.S.C. § 7407. States with nonattainment areas must work to reach attainment by developing State Implementation Plans (" SIPs" ) that plot out the path to better air; EPA in turn must ensure that each SIP complies with the CAA. CAA § 110, 42 U.S.C. § 7410.

When the CAA was amended in 1990, areas designated as " severe" or " extreme" nonattainment areas under the NAAQS that was then in place became subject to " penalties to provide incentives for major polluters to reduce VOC [volatile organic compound] emissions." S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 888, 374 U.S.App.D.C. 121 (D.C. Cir. 2006) (" South Coast " ). Section 185, the CAA provision that effectuates these penalties, sets forth the general rule that each " major stationary source" located in a severe or extreme nonattainment area must pay this penalty, and also prescribes specifically how penalties must be calculated and collected. 42 U.S.C. § 7511d.1

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For years, EPA set the NAAQS using a one-hour average measurement standard. See Revisions to the National Ambient Air Quality Standards for Photochemical Oxidants, 44 Fed.Reg. 8,202 (Feb. 8, 1979) (codifying one-hour standard). In 1997, after much review, EPA determined that it would start using a standard in which the NAAQS was set by an average over eight hours. NAAQS for Ozone, 62 Fed.Reg. 38,856 (July 18, 1997) . The previous one-hour NAAQS, translated arithmetically to the new eight-hour NAAQS, would have been 0.09 parts per million (ppm), but under the eight-hour standard going forward, the NAAQS would allow only 0.08 ppm of ozone in the air. " The new standard thus both changed the measuring scheme" -- going from a one-hour average to eight hours -- " and was marginally more stringent." South Coast, 472 F.3d at 888. Originally, EPA planned to just phase out the one-hour standard, but it subsequently revoked that standard entirely.

The 1990 revisions of the CAA relied on the one-hour NAAQS in setting certain classifications, but the...

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