El Comité Para El Bienestar De Earlimart v. U.S. Envtl. Prot. Agency, 12–74184.

Decision Date08 May 2015
Docket NumberNo. 12–74184.,12–74184.
Citation786 F.3d 688
PartiesEL COMITÉ PARA EL BIENESTAR DE EARLIMART, an unincorporated assoc iation; Association of Irritated Residents, a California non-profit corporation; Wishtoyo Foundation, a California non-profit corporation; Ventura Coastkeeper, a program of the Wishtoyo Foundation, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Lisa P. Jackson, in her official capacity as Administrator of the U.S. EPA ; Jared Blumenfeld, in his official capacity as Regional Administrator for Region IX of the U.S. EPA, Respondents.
CourtU.S. Court of Appeals — Ninth Circuit

786 F.3d 688

EL COMITÉ PARA EL BIENESTAR DE EARLIMART, an unincorporated assoc iation; Association of Irritated Residents, a California non-profit corporation; Wishtoyo Foundation, a California non-profit corporation; Ventura Coastkeeper, a program of the Wishtoyo Foundation, Petitioners
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY; Lisa P. Jackson, in her official capacity as Administrator of the U.S. EPA ; Jared Blumenfeld, in his official capacity as Regional Administrator for Region IX of the U.S. EPA, Respondents.

No. 12–74184.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 2015.
Filed May 8, 2015.


786 F.3d 690

Brent J. Newell (argued), Sofia Parino, Center on Race, Poverty & the Environment, San Francisco, California, for Petitioners.

Robert G. Dreher, Acting Assistant Attorney General, Dustin J. Maghamfar (argued), Environmental Defense Section, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Jefferson Wehling, Office of Regional Counsel, Jan Tierney, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C., for Respondents.

786 F.3d 691

Rissa A. Stuart, Ann M. Grottveit, Katherine E. Underwood, Kahn, Soares & Conway, LLP, Sacramento, California, for Amicus Curiae Air Coalition Team.

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

Before: MARY M. SCHROEDER and BARRY G. SILVERMAN, Circuit Judges and MARVIN J. GARBIS,* Senior District Judge.

OPINION

SCHROEDER, Senior Circuit Judge:

We deal with another phase of California's efforts to create a “Pesticide Element” for its State Implementation Plan (“SIP”) that meets the requirements of the Clean Air Act, 42 U.S.C. § 7401 et seq. This is a challenge by several community organizations to the Environmental Protection Agency's (“EPA”) 2012 approval of revisions and additions to California's Pesticide Element relating to the reduction of volatile organic compounds (“VOCs”), precursors of ozone, in the San Joaquin and Ventura air basins.

In an earlier decision involving the Pesticide Element, we held that certain of its commitments were not enforceable emissions standards or limitations of the SIP that could be challenged pursuant to § 304(a) of the Clean Air Act. El Comité Para El Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1073 (9th Cir.2008). The EPA subsequently approved revisions to California's Pesticide Element, so this is a suit pursuant to § 307(b) of the Clean Air Act, which provides for review of agency action in approving a SIP.

There are three issues presented. The first is whether the EPA was arbitrary and capricious in its interpretation of the Pesticide Element's commitment to reduce emissions by certain levels. We hold that the EPA's interpretation was reasonable in light of the ambiguity in the Pesticide Element's plain language.

The second issue is whether the EPA reasonably determined that the revisions fulfilled the commitment in the original Pesticide Element to adopt enforceable regulations for reducing emissions. We hold that the determination was reasonable, because the EPA's explanation demonstrates that it considered the relevant data and factors regarding emission levels. Further, the action was not in conflict with our decision in Warmerdam. Because the revisions fulfilled California's original commitment, the EPA correctly determined that it did not need to consider whether the original commitment itself was enforceable.

The third issue is whether the EPA was unreasonable in finding that California's assurances of compliance with federal and state law pursuant to § 110(a)(2)(E) of the Act were adequate in light of an earlier Title VI civil rights complaint filed with the EPA concerning VOC emissions in the San Joaquin Valley. We hold that the EPA's determination was not unreasonable because it provided a reasoned explanation for its actions which took into account the EPA complaint, as well as the EPA's own investigation, and evidence of California's subsequent compliance with a settlement order.

We therefore deny the petition for review, with the hope that our action will bring to an end litigation and administrative

786 F.3d 692

proceedings over the Pesticide Element dating back to 1994.

BACKGROUND

I. Statutory Background

The Clean Air Act (“CAA” or “Act”) directs the EPA to establish national ambient air quality standards (“NAAQS”) for pollutants that endanger public health or welfare. 42 U.S.C. § 7409. The CAA requires the states to submit State Implementation Plans, or “SIPs,” showing how the states will attain the NAAQS for the major air pollutants. Id. § 7410(a)(1). The EPA is tasked with determining whether a SIP complies with the Act's requirements. Id. § 7410(k)(3). Once approved by the EPA, a SIP has the “force and effect of federal law.” Safe Air For Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir.2007).

A state must designate the areas within its boundaries as either “attainment” or “nonattainment” depending on whether they meet the NAAQS for a given pollutant. See 42 U.S.C. § 7407(d)(1)(A). SIPs covering nonattainment areas must provide “enforceable emission limitations, and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment” by the applicable deadline. Id. § 7502(c)(6). The state is further required to provide “necessary assurances” that no state or federal law would impede implementation of the SIP or parts thereof. Id. § 7410(a)(2)(E).

These SIPs also must include an attainment demonstration, to show through air quality modeling that the SIP's proposed control measures will ensure the areas timely attain the ozone standard, id. § 7502(c)(1), and a reasonable further progress demonstration, to show that the SIP will reduce pollutant emissions by a specified percentage each year until the attainment year. Id. § 7511a. States must submit to the EPA for approval any proposed revisions to a SIP. The Act's “anti-backsliding” provision mandates that the EPA “shall not approve a revision of a [SIP] if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress ... or any other applicable requirement of this chapter.” Id. § 7410(l ).

Approved SIPs are enforceable by citizens in federal court under § 304(a) of the Act. Id. § 7604(a). Citizens' suits are limited to enforcing a SIP's specific strategies, however, and may not enforce its overall objectives or aspirational goals. Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm'n, 366 F.3d 692, 701 (9th Cir.2004). Under § 307(b)(1), 42 U.S.C. § 7607(b)(1), citizens may also petition for review of the EPA's rulemaking process. That is the jurisdictional provision invoked in this case. Unlike the citizen suit provision of § 304, which authorizes only actions to review enforceable emission standards or limitations, see Warmerdam, 539 F.3d at 1073, the provisions of § 307 allow petitions for review of final EPA actions in approving an implementation plan. Compare id. § 7604(a), with § 7607(b)(1).

II. Prior Proceedings

One of the air pollutants the CAA regulates is ozone, which forms as a result of photochemical reactions between volatile organic compounds (“VOCs”) and oxides of nitrogen (“NOx”) in the atmosphere. 69 Fed.Reg. 23,858 (Apr. 30, 2004). As part of its 1994 SIP for attaining the ozone NAAQS, California included a subsection known as the “Pesticide Element,” which

786 F.3d 693

proposed strategies for reducing VOC emissions from agricultural and commercial pesticide use in five nonattainment areas.

As submitted, the Pesticide Element contained two primary commitments. First, California committed “to reduce volatile organic compound (VOC) emissions from agricultural and commercial structural pesticide applications by a maximum of 20 percent from the 1990 baseline emission inventory to the year 2005.” The 1990 baseline was to be established using 1991 VOC pesticide emission data, adjusted to represent the 1990 base year. Second, California committed that its Department of Pesticide Regulation (“DPR”) would decide whether to adopt “additional regulatory measures to ensure that reductions in pesticidal VOC emissions are achieved” by 1997.

Several years of back and forth communication between the EPA and California's DPR ensued as the EPA sought to satisfy itself that the Pesticide Element met the Act's requirements for approval. Specifically, the EPA asked California to confirm that it committed to specific percentage reductions on a linear basis from 1996 through 2005 in each nonattainment area. It also requested that California specify a more precise deadline for deciding whether additional regulations were necessary to achieve those reductions.

California complied with these requests via correspondence...

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