Ass'n of Irritated Residents v. U.S. Envtl. Prot. Agency

• Decision Date: 26 August 2021
• Docket Number: No. 19-71223,19-71223
• Citation: 10 F.4th 937
• Parties: ASSOCIATION OF IRRITATED RESIDENTS, a California non-profit corporation, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY ; Michael S. Regan, in his official capacity as Administrator of the U.S. Environmental Protection Agency ; Deborah Jordan, in her official capacity as Acting Regional Administrator for Region IX of the U.S. Environmental Protection Agency, Respondents, South Coast Air Quality Management District; San Joaquin Valley Unified Air Pollution Control District, Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

10 F.4th 937

ASSOCIATION OF IRRITATED RESIDENTS, a California non-profit corporation, Petitioner,

v. U.S. ENVIRONMENTAL PROTECTION AGENCY ; Michael S. Regan, in his official capacity as Administrator of the U.S. Environmental Protection Agency ; Deborah Jordan, in her official capacity as Acting Regional Administrator for Region IX of the U.S. Environmental Protection Agency, Respondents,South Coast Air Quality Management District; San Joaquin Valley Unified Air Pollution Control District, Intervenors.

No. 19-71223

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2020 Portland, Oregon

Filed August 26, 2021

Brent J. Newell (argued), Law Offices of Brent J. Newell, Petaluma, California; Andrew L. Packard and William N. Carlon, Law Offices of Andrew L. Packard, Petaluma, California; for Petitioner.

Alan D. Greenberg (argued), Attorney; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environmental Defense Section, Environment and Natural Resources Division, United States Department of Justice, Denver, Colorado; Jefferson Wehling, Office of the Regional Counsel, United States Environmental Protection Agency, San Francisco, California; Geoffrey L. Wilcox, Office of the General Counsel; United States Environmental Protection Agency, Washington, D.C.; for Respondents.

Jessica E. Hafer Fierro (argued) and Annette A. Ballatore-Williamson, San Joaquin Valley Unified Air Pollution Control District, Fresno, California; Barbara Baird and Mary J. Reichert, South Coast Air Quality Management District, Diamond Bar, California; for Intervenors.

Before: Mark J. Bennett and Eric D. Miller, Circuit Judges, and Benita Y. Pearson,^* District Judge.

MILLER, Circuit Judge:

The Environmental Protection Agency adopted a final rule approving the State of California's plan for meeting the air quality standard for ozone in the San Joaquin Valley. 84 Fed. Reg. 11,198 (Mar. 25, 2019). The plan contains a single contingency measure that will be activated if the other provisions of the plan do not achieve reasonable further progress toward meeting the standard. Arguing that the contingency measure is inadequate, an environmental organization petitions for review. Because we agree that the agency's approval of the plan was arbitrary and capricious, we grant the petition in part and remand.

I

A

The Clean Air Act establishes "a cooperative state-federal scheme for improving the nation's air quality." Vigil v. Leavitt , 381 F.3d 826, 830 (9th Cir. 2004). Under the Act, the EPA issues standards for atmospheric pollutants such as ozone. 42 U.S.C. §§ 7408(a), 7409(a) ; see, e.g. , 40 C.F.R. § 50.15. States, in turn, establish plans to meet those standards and submit them to the EPA for approval. 42 U.S.C. §§ 7407(a), 7410(a). When an area does not meet a standard, it is designated a "nonattainment" area. See id. §§ 7407(d)(1)(A), 7501(2). There are several degrees of nonattainment, ranging from marginal to extreme, id. § 7511(a)(1), and each classification imposes increasingly stringent requirements to reduce emissions and promote progress toward attainment, id. § 7511a(b)(1)(A), (c)(2)(B), (d), (e).

A state plan must "include enforceable emission limitations" to attain the relevant air quality standard. 42 U.S.C. § 7410(a)(2)(A) ; see id. § 7502(c)(6); Committee for a Better Arvin v. EPA , 786 F.3d 1169, 1176 (9th Cir. 2015). Plans covering nonattainment areas must also include provisions to ensure "reasonable further progress," 42 U.S.C. § 7502(c)(2), that is, "annual incremental reductions in emissions" to achieve attainment, id. § 7501(1) ; see 40 C.F.R. § 51.1100(t) (defining "reasonable further progress" for emissions relevant to meeting ozone standards); id. § 51.1110(a)(2) (same). For extreme ozone nonattainment areas, the plan must provide for reasonable further progress of "at least 3 percent of baseline emissions each year." 42 U.S.C. § 7511a(c)(2)(B)(i), (d), (e).

The Act requires assessment of progress at triennial "milestones." 42 U.S.C. § 7511a(g)(1). At each milestone, "the State shall determine whether each nonattainment area ... has achieved a reduction in emissions during the preceding intervals equivalent to the total emission reductions required to be achieved by the end of such interval." Id. If the State does not meet a milestone in an extreme nonattainment area, it must submit a plan revision within nine months. Id. § 7511a(g)(5).

Congress recognized that a State's implementation plan might not succeed. Thus, plans covering nonattainment areas must "provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress" or fails to attain the relevant air quality standard. 42 U.S.C. § 7502(c)(9). Those contingency measures "shall ... take effect in any such case without further action by the State or the [EPA] Administrator." Id. Similarly, any plan revision covering an extreme nonattainment area "shall provide for the implementation of specific measures to be undertaken if the area fails to meet any applicable milestone." Id. § 7511a(c)(9) ; see id. § 7511a(d), (e). Those measures also take effect automatically "upon a failure by the State to meet the applicable milestone." Id. § 7511a(c)(9), (d), (e) ; see also 80 Fed. Reg. 12,264, 12,285 –86 (Mar. 6, 2015) (finalizing requirements for contingency measures in state plans). By requiring contingency measures, the Act closes any potential gap in progress should a nonattainment area miss a milestone. See 42 U.S.C. §§ 7502(c)(9), 7511a(c)(9).

B

The San Joaquin Valley is a large inland area of California extending from the Sacramento-San Joaquin Delta in the north to the Tehachapi Mountains in the south. The Valley has long struggled to attain air quality standards for ozone. In 2012, the EPA classified the Valley as an extreme nonattainment area for the 8-hour ozone standard. See 40 C.F.R. § 51.1103(a), (d) ; 77 Fed. Reg. 30,088, 30,092 (May 21, 2012).

The San Joaquin Valley Air Pollution Control District is responsible for developing the state implementation plan for the Valley. 83 Fed. Reg. 44,528, 44,529 (Aug. 31, 2018). Another state agency, the California Air Resources Board, is responsible for submitting the state plan to the EPA for approval. Id. We refer to these entities collectively as the State.

In late 2018, the State proposed updates to its plan for the Valley. The updates reflected a response to our decision in Bahr v. EPA , 836 F.3d 1218 (9th Cir. 2016), in which we held that contingency measures may not include measures that have already been implemented in a state plan. Id. at 1235–36 ; accord Sierra Club v. EPA , 985 F.3d 1055, 1067–68 (D.C. Cir. 2021). The State explained that previous plans for the Valley had "featured contingency measures that relied upon reductions from the continued implementation of programs already adopted," which "provided excess emission reductions beyond what was required for attainment or reasonable further progress." Because those measures could no longer count as contingency measures after Bahr , the plan provided for a different contingency measure: the repeal of a rule allowing for the sale of small containers of paint. The plan also prescribed an "Enhanced Enforcement Activities Program"—a menu of options to reduce emissions if the State was unable to meet a milestone or attainment.

The EPA approved the revised plan. 84 Fed. Reg. at 11,198. The agency acknowledged that it had previously "recommended in guidance that contingency measures should provide emissions reductions approximately equivalent to one year's worth of [reasonable further progress], which, with respect to ozone in the ... Valley," amounted to about 11.4 tons per day. Id. at 11,205. The agency estimated that the one contingency measure proposed by the State—the repeal of the small-container exemption for paint—would provide reductions of only one ton per day. Id. at 11,206. But the agency stated that it now "do[es] not believe that the contingency measures themselves must provide for one year's worth of [reasonable further progress]." Id. Under its new approach, the agency permitted the State to count "additional emission reductions projected to occur that a state has not relied upon for purposes of [reasonable further progress] or attainment ... and that result from measures the state has not adopted as contingency measures." Id.

The EPA also approved the Enhanced Enforcement Activities Program, but it did not consider that program to be "a stand-alone contingency measure." 84 Fed. Reg. at 11,204 ; see id. at 11,203. Instead, the agency approved the program as "a [plan]-strengthening portion of the contingency measure." Id. at 11,204.

II

The Association of Irritated Residents (AIR), a California nonprofit corporation with members who reside in the Valley, petitions for review of the EPA's final rule approving the state plan. The San Joaquin Valley Air Pollution Control District and the South Coast Air Quality Management District have intervened in defense of the rule. Although the EPA does not question AIR's standing, the intervening districts do, so we begin by considering their argument.

To establish Article III standing, "a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; see also Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). AIR meets those requirements.

It is well established "that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are...