Bahr v. Regan

• Decision Date: 28 July 2021
• Docket Number: No. 20-70092,20-70092
• Citation: 6 F.4th 1059
• Parties: Sandra L. BAHR; Jeanne Lunn; David Matusow, Petitioners, v. Michael REGAN, Administrator, United States Environmental Protection Agency; Deborah Jordan, Acting Regional Administrator, U.S. EPA Region 9; U.S. Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

6 F.4th 1059

Sandra L. BAHR; Jeanne Lunn; David Matusow, Petitioners,

v.Michael REGAN, Administrator, United States Environmental Protection Agency; Deborah Jordan, Acting Regional Administrator, U.S. EPA Region 9; U.S. Environmental Protection Agency, Respondents.

No. 20-70092

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2021 Phoenix, Arizona

Filed July 28, 2021

Jennifer B. Anderson (argued) and Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix, Arizona, for Petitioners.

Andrew D. Knudsen (argued), Attorney; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Geoffrey L. Wilcox, Kaytrue Ting, Elizabeth Pettit, and Charlotte Withey, United State Environmental Protection Agency Office of Regional Counsel, Washington, D.C.; for Respondents.

Mark Brnovich, Attorney General; Shelley D. Cutts, Assistant Attorney General; Office of the Attorney General, Phoenix, Arizona; for Amicus Curiae State of Arizona.

Lucas J. Narducci and Michael C. Ford, Snell & Wilmer LLP, Phoenix, Arizona, for Amicus Curiae Arizona Chamber of Commerce and Industry.

Before: Carlos T. Bea and Patrick J. Bumatay, Circuit Judges, and Kathleen Cardone,^* District Judge.

Concurrence by Judge Bumatay

BEA, Circuit Judge:

The intensity of the Arizona sun, a burgeoning metropolitan population, and heavy vehicular traffic have hindered Arizona's efforts to reduce the concentration of ozone in the Phoenix region below the national standard that the Environmental Protection Agency ("EPA") had set as safe for human health (the National Ambient Air Quality Standard, or "NAAQS") (Arizona already failed its first attempt, in 2012, to reach that standard). To come into compliance with the Clean Air Act, EPA required Arizona to demonstrate that it had achieved the statutorily required reduction in ozone concentration by July 2018. Having already failed once to reduce ozone concentration within the timeframe mandated by the Clean Air Act, Arizona would have been subject to intensified regulatory restrictions had the state failed to achieve compliance by 2018. Such compliance, as with most matters involving environmental regulation, is a complicated matter. Nonetheless, we find EPA's conclusions that led to its finding that Arizona did timely achieve compliance were valid, and we will deny the petition for review.

On June 17, 2015, a major wildfire—the Lake Fire—broke out in the San Bernardino National Forest in southeast California. Three days later, on June 20, three hundred miles east of the fire, six air quality monitors in the Phoenix region registered abnormally high concentrations of ozone, in excess of the NAAQS. If not for those exceedances, Arizona would have been able to demonstrate it had attained the ozone NAAQS by July 2018. As it happens, the Clean Air Act requires EPA to exclude monitoring data if a recorded exceedance was clearly caused by exceptional, uncontrollable events—such as a wildfire. In 2007, EPA had implemented an Exceptional Events Rule to govern the treatment of such data. In September 2016, EPA revised that Exceptional Events Rule. To demonstrate that the June 20, 2015 exceedances qualified for exclusion as influenced by exceptional events, Arizona submitted to EPA three sets of statistical demonstrations. Arizona submitted its initial demonstration while the 2007 rule was in effect but submitted its two supplemental demonstrations while the 2016 rule was in effect. EPA decided to apply the requirements of the 2016 rule and concluded the Lake Fire did indeed cause the June 20, 2015 monitor readings. EPA then excluded the six exceedances from its NAAQS calculations.

Subsequently, in a final rule¹ based on those exclusions, EPA determined the Phoenix area had successfully attained the ozone NAAQS by its July 20, 2018 attainment date. That rule allowed Arizona to avoid additional, more strict regulatory burdens (although evidence suggests the area ozone levels have since lapsed back to exceed the standard). Based on that attainment determination, EPA also decided to suspend one requirement to which Arizona was already subject: that it develop contingency measures to be implemented if Arizona had failed to attain the NAAQS by the statutory 2018 date.

Petitioners—citizens of Phoenix—challenge that final rule. They first claim EPA violated the presumption against retroactivity when it applied the 2016 version of the Exceptional Events Rule because the 2007 rule had been in effect when the 2015 Lake Fire and exceedances occurred. We hold EPA's application of the 2016 Exceptional Events Rule did not impact any vested rights, create any new obligations, or otherwise impact any regulated party's interests in fair notice, reasonable reliance, or settled expectations. Therefore, the application of the 2016 Exceptional Events Rule was not impermissibly retroactive and no presumption against retroactivity arose.

Petitioners further claim Arizona's evidence does not support EPA's finding that a clear causal connection existed between the Lake Fire and the June 20, 2015 exceedances. But we defer to EPA's technical conclusions and find that Arizona adduced evidence sufficient to allow EPA to make such finding. As a result, EPA did not act arbitrarily or capriciously by excluding the data from the six monitors as falling within the Exceptional Events Rule.

Finally, Petitioners claim EPA acted contrary to the Clean Air Act in suspending Arizona's contingency measures requirement in EPA's July 2018 final rule. Petitioners contend that the Clean Air Act requires states to provide attainment contingency measures regardless whether the region attains the NAAQS by its attainment date. We find Petitioners forfeited this argument by not sufficiently raising it in their comment before the agency, but, even under a lenient interpretation of the content of their comment before the agency, we conclude that EPA's construction of the Clean Air Act is owed deference under Chevron .² EPA's suspension of the contingency measure requirements in its July 2018 final rule did not violate the Clean Air Act.

For these reasons, we deny petitioners request to review the rule.

BACKGROUND

I. LEGAL FRAMEWORK

A. Clean Air Act & National Ambient Air Quality Standards

The Clean Air Act of 1970 and its amendments created a system intended to improve the country's ambient air quality—the national ambient air quality standards. This system aims to reduce the concentration of certain air pollutants ("criteria pollutant") that are found to endanger public health or welfare. 42 U.S.C. §§ 7408(a), 7409(b). To implement the NAAQS program, the Clean Air Act requires EPA to partition the country geographically into designated air quality control regions. Id. § 7407. EPA assesses each region individually to determine whether the region's ambient air exceeds the allowable concentrations for each criteria pollutant. Id. For those regions that meet the standard, EPA designates them as "in attainment," while those regions that do not meet the NAAQS are designated as "nonattainment areas" or "NAAs." Id. A nonattainment area "attains the NAAQS" if the average concentration of a particular pollutant in the ambient air does not exceed the standard. Id.

For those areas designated nonattainment for ozone (a criteria pollutant), EPA further classifies each region based on the severity of the nonattainment: marginal, moderate, serious, severe, or extreme. Id. § 7511(a)(1). Depending on that classification, the Clean Air Act provides a nonattainment area with a certain number of years by which it must attain the NAAQS. Id. EPA must determine whether an ozone nonattainment area attained the NAAQS by that date ("attainment date"). Id. § 7511(b)(2)(A). Should EPA find that the area failed to attain the NAAQS by the attainment date, the area is automatically reclassified to the next strictest class. This reclassification imposes more stringent requirements, designed to reduce air pollution, and the region is given a new attainment date. Id.

If by the attainment date EPA determines a nonattainment area has successfully achieved the NAAQS, it issues a "§ 7511(b)(2) Attainment Determination."³ Id. This § 7511(b)(2) Attainment Determination acts to prevent a region's automatic classification downgrade, but it does not formally redesignate the area as in attainment or suspend any regulatory requirements. A formal redesignation occurs only after the region meets further statutory requirements, which include a finding that improvements in air quality are permanent, not transient, and EPA's approval of a ten-year maintenance plan to prevent backsliding. Id. § 7407(d)(3).

B. State Implementation Plans, Contingency Measures, and the Clean Data Policy

The Clean Air Act operates predominantly through state action rather than through direct federal control. The Act seeks to achieve improvements in ambient air quality by requiring states to create and implement pollutant controls. For each region within a state that is designated nonattainment for a criteria pollutant, the state must create a State Implementation Plan ("SIP") and obtain approval from EPA. Id. § 7410. A SIP outlines the measures the state intends to take to reduce the concentration of the pollutant in the region. Although the exact policy choices as to how to achieve those reductions are primarily left to the states, the Clean Air Act does require that SIPs contain certain provisions. For example, a SIP must require that an area in nonattainment make "reasonable further progress" ("RFP") towards attaining the NAAQS. Id. § 7502(c)(2). Another mandated provision, the provision at issue here, is the identification of certain contingency measures "to be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the attainment date...