Comm. for a Better Arvin v. U.S. Envtl. Prot. Agency

• Decision Date: 20 May 2015
• Docket Number: Nos. 11–73924,12–71332.,s. 11–73924
• Citation: 786 F.3d 1169
• Parties: COMMITTEE FOR A BETTER ARVIN, a California nonprofit corporation; Comite Residentes Organizados Al Servicio Del Ambiente Sano, an unincorporated assoc iation; Association of Irritated Residents, an unincorporated assoc iation, 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, San Joaquin Valley Unified Air Pollution Control District, Respondent–Intervenor. Committee for a Better Arvin, a California nonprofit corporation; Comite Residentes Organizados Al Servicio Del Ambiente Sano, an unincorporated assoc iation; Association of Irritated Residents, an unincorporated assoc iation, Petitioners, v. U.S. Environmental Protection Agency; Gina McCarthy, Administrator, U.S. Environmental Protection Agency; Jared Blumenfeld, Regional Administrator, Region IX, U.S. Environmental Protection Agency, Respondents, San Joaquin Valley Unified Air Pollution Control District, Respondent–Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

786 F.3d 1169

COMMITTEE FOR A BETTER ARVIN, a California nonprofit corporation;

Comite Residentes Organizados Al Servicio Del Ambiente Sano, an unincorporated assoc iation;

Association of Irritated Residents, an unincorporated assoc iation, Petitionersv.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

San Joaquin Valley Unified Air Pollution Control District, Respondent–Intervenor.

Committee for a Better Arvin, a California nonprofit corporation;

Comite Residentes Organizados Al Servicio Del Ambiente Sano, an unincorporated assoc iation;

Association of Irritated Residents, an unincorporated assoc iation, Petitionersv.U.S. Environmental Protection Agency;

Gina McCarthy, Administrator, U.S. Environmental Protection Agency;

Jared Blumenfeld, Regional Administrator, Region IX, U.S. Environmental Protection Agency, Respondents

San Joaquin Valley Unified Air Pollution Control District, Respondent–Intervenor.

Nos. 11–73924

12–71332.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 22, 2014.

Filed May 20, 2015.

Brent Newell (argued), Sofia L. Parino, Center on Race, Poverty & the Environment, San Francisco, CA; Laura Baker, Center on Race, Poverty & the Environment, Delano, CA, for Petitioners.

Heather E. Gange (argued), Ignacia S. Moreno, Dustin J. Maghamfar, United States Department of Justice, Washington, D.C.; Jeanhee Hong, Jefferson Wehling, United States Environmental Protection Agency, San Francisco, CA; Jan Tierney, Geoffrey L. Wilcox, United States Environmental Protection Agency, Washington, D.C., for Respondents.

Annette A. Ballatore–Williamson (argued), Catherine T. Redmond, San Joaquin Valley Unified Air Pollution Control District, Fresno, CA, for Respondent–Intervenor.

On Petition for Review of an Order of the United States Environmental Protection Agency.

Before: SIDNEY R. THOMAS, Chief Judge, and ALEX KOZINSKI and RONALD M. GOULD, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Petitioners, a contingent of environmental and community groups, bring serious challenges to the State of California's plans to improve air quality in the San Joaquin Valley, an area with some of the worst air quality in the United States. We must consider whether these state plans are sufficient in law, specifically, whether the regulating United States Environmental Protection Agency (“EPA”) erred in approving California's State Implementation Plans (“SIPs”) to comply with National Ambient Air Quality Standards (“NAAQS”) enacted under the federal Clean Air Act (“CAA”) concerning ozone and fine particulate matter in the San Joaquin Valley. We do this in the context of a cooperative federalism regime in which the federal agency sets required air quality standards but the state is a primary actor in creating plans to achieve them, followed by potential enforcement at both state and federal levels and by private citizens.

Petitioners contend: (1) that the approved plans calculate the necessary emissions reductions and forecasts in part based on state-adopted measures that are not themselves incorporated into the federally enforceable plan, in violation of the CAA; (2) that other strategies to gain compliance with the NAAQS proposed by the California Air Resources Board (“CARB”) and Intervenor San Joaquin Valley Unified Air Pollution Control District (“the District”) that are in the EPA-approved plans are unenforceable goals, rather than the enforceable commitments that the CAA requires; (3) that EPA unlawfully approved the plan relating to ozone insofar as that plan lacked enforceable transportation control measures; and (4) that the D.C. Circuit's holding in NRDC v. EPA, 706 F.3d 428 (D.C.Cir.2013), that EPA relied on the wrong statutory provision of the CAA in crafting its fine particulate matter implementation rule, pursuant to which the fine particulate matter plan at issue was approved, gives another important reason to grant the petition.

We hold that by approving California's plans even though the plans did not include the state-adopted mobile emissions standards on which those plans rely to achieve their emissions reductions goals, EPA violated the CAA. We also hold that EPA did not violate the CAA by not requiring inclusion of other state mechanisms in its plans, and that other control measures approved by EPA are enforceable commitments as the CAA requires.¹

I

States and the federal government must work together to improve air quality for individuals nationwide. This is so because the CAA has established a uniquely important system of cooperative federalism in the quest for clean air. “The CAA makes the States and the Federal Government partners in the struggle against air pollution.” Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 938 (9th Cir.2011) (quoting Gen. Motors Corp. v. United States, 496 U.S. 530, 532, 110 S.Ct. 2528, 110 L.Ed.2d 480 (1990) (internal quotation marks omitted)). The CAA protects the nation's air quality by authorizing EPA to establish NAAQS that apply to air pollutants. 42 U.S.C. § 7409.² EPA designates areas that fail to attain the NAAQS as “nonattainment areas.” Id. § 7407(d)(1).

A

The CAA requires states to address nonattainment areas by developing a SIP that lays out a plan for how a nonattainment area will eventually comply with the NAAQS. 42 U.S.C. §§ 7407(a), 7410. After public notice and hearings, a state must adopt the SIP and submit it to EPA for review and approval. Id. § 7410(a). EPA must then act on the SIP, approving or disapproving it in part or in whole. 42 U.S.C. § 7410(k)(3). Once approved by EPA, a “SIP bec[o]me[s] federal law ..., and c[annot] be changed unless and until EPA approve[s] any change.” Safe Air for Everyone v. EPA, 488 F.3d 1088, 1097 (9th Cir.2007) (emphasis omitted). The CAA provides a private right of action for citizens to enforce a SIP by bringing a civil action in federal district court. 42 U.S.C. § 7604.

B

The CAA also regulates mobile source emissions, such as those from cars and trucks. Congress has generally preempted states from setting mobile source emissions standards. Jensen, 644 F.3d at 938 (citing 42 U.S.C. § 7543(a) ). California, however, may set its own mobile source emissions standards, with EPA approval. Id. at 938 n. 3 (citing 42 U.S.C. § 7543(b) (motor vehicles); § 7543(e)(2) (nonroad sources)). California thus relies on its own mobile source standards in the development of its SIPs.

C

The present challenge relates to EPA's approval of revisions to California's 2007 SIP, and specifically to plans for achieving compliance with national standards for two pollutants: fine particulate matter (“PM_2.5”) and ozone.

In 1997, EPA promulgated 24–hour and annual standards for PM_2.5. The relevant parts of California's plan to meet these requirements are: (1) the District's 2008 PM_2.5Plan, revised in 2010 and 2011; and (2) provisions of CARB's 2007 State Strategy, as revised in 2009 and 2011, that relate to the San Joaquin Valley (collectively, “the PM_2.5Plan”). The PM_2.5Plan was proposed for inclusion in California's SIP. On November 9, 2011, EPA approved in part and disapproved in part the PM_2.5Plan in a final rulemaking, and the timely petition for review in case number 11–73924 followed.

As to ozone, EPA promulgated the 8–hour ozone standard to replace the 1–hour standard in 1997, and adopted a more stringent 8–hour ozone standard in 2008. The 8–hour standard refers to the average concentration of ground-level ozone, which can contribute to lung disease, as measured over an 8–hour period in a given area. The key parts of California's plan to meet the 8–hour ozone standard are: (1) the District's 2007 Ozone Plan, as revised in 2008 and 2011; and (2) the provisions of CARB's State Strategy, as revised in 2009 and 2011, that pertain to the San Joaquin Valley (collectively, “the 8–Hour Plan”). EPA approved the 8–Hour Plan on March 1, 2012, and the timely petition for review in case number 12–71332 followed.

We refer collectively to the PM_2.5and 8–Hour Plans as “the Plans.” Because the two petitions are closely related and involve the same parties, we address the petitions together.

II

We have jurisdiction to review EPA's action pursuant to 42 U.S.C. § 7607(b)(1). We review approval of a SIP by considering whether the EPA's decision was arbitrary, capricious, an abuse of discretion, or contrary to law. Sierra Club v. EPA, 671 F.3d 955, 961 (9th Cir.2012) (noting that when assessing CAA challenges, we apply the general standard of review for agency decisions set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701 –06 ). “With respect to the CAA, Congress has given EPA general rulemaking authority, 42 U.S.C. § 7601(a)(1), which, when exercised, requires our deference in accordance with Chevron. ” Id. at 962.

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) [,] generally sets forth the framework by which we review an agency's interpretation of a statute. Id. at 842–44, 104 S.Ct. 2778. Under this framework at the first step we determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43, 104 S.Ct. 2778. “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.

Sierra Club, 671 F.3d at 961–62. EPA's interpretation of its own regulations is given considerable deference and “must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, ...