California ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep't of the Interior, 12-55856

• Decision Date: 01 August 2014
• Docket Number: No. 12-55856,No. 12-55956,12-55856,12-55956
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: PEOPLE OF THE STATE OF CALIFORNIA EX REL. IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; COUNTY OF IMPERIAL, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL, Secretary of the United States Department of Interior; UNITED STATES BUREAU OF RECLAMATION; MICHAEL L. CONNOR, Commissioner, Bureau of Reclamation, Defendants-Appellees, IMPERIAL IRRIGATION DISTRICT; SAN DIEGO COUNTY WATER AUTHORITY; COACHELLA VALLEY WATER DISTRICT; METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, Intervenor-Defendants-Appellees. PEOPLE OF THE STATE OF CALIFORNIA EX REL. IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; COUNTY OF IMPERIAL, Plaintiffs-Appellees, v. U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL , Secretary of the United States Department of Interior; UNITED STATES BUREAU OF RECLAMATION; MICHAEL L. CONNOR, Commissioner, Bureau of Reclamation, Defendants, And IMPERIAL IRRIGATION DISTRICT; SAN DIEGO COUNTY WATER AUTHORITY; COACHELLA VALLEY WATER DISTRICT; METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, Intervenor-Defendants-Appellants.

PEOPLE OF THE STATE OF CALIFORNIA EX REL. IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT;
IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT;
COUNTY OF IMPERIAL, Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF THE INTERIOR;
SALLY JEWELL, Secretary of the United States Department of Interior;
UNITED STATES BUREAU OF RECLAMATION;
MICHAEL L. CONNOR, Commissioner, Bureau of Reclamation, Defendants-Appellees,
IMPERIAL IRRIGATION DISTRICT;
SAN DIEGO COUNTY WATER AUTHORITY;
COACHELLA VALLEY WATER DISTRICT;
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, Intervenor-Defendants-Appellees.

PEOPLE OF THE STATE OF CALIFORNIA EX REL. IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT;
IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT;
COUNTY OF IMPERIAL, Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF THE INTERIOR;
SALLY JEWELL , Secretary of the United States Department of Interior;
UNITED STATES BUREAU OF RECLAMATION;
MICHAEL L. CONNOR, Commissioner, Bureau of Reclamation, Defendants,
And
IMPERIAL IRRIGATION DISTRICT;
SAN DIEGO COUNTY WATER AUTHORITY;
COACHELLA VALLEY WATER DISTRICT;
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, Intervenor-Defendants-Appellants.

No. 12-55856
No. 12-55956

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Filed May 19, 2014
August 1, 2014

FOR PUBLICATION

D.C. No. 3:09-cv-02233-AJB-PCL

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ORDER AND AMENDED OPINION

Appeal from the United States District Court for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding

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Argued and Submitted December 4, 2013—Pasadena, California

Before: Paul J. Watford and Andrew D. Hurwitz, Circuit Judges, and William E. Smith, Chief District Judge.^*

Order;
Opinion by Judge Hurwitz

SUMMARY^**

Environmental Law

The panel amended its opinion, filed May 19, 2014, and affirmed the district court's summary judgment in favor of federal defendants and intervenor water districts in an action challenging an environmental impact statement prepared by the Secretary of the Interior that analyzed the effects of water transfer agreements on the Salton Sea in southern California.

The panel disagreed with the district court and held that the plaintiffs, Imperial County and the Imperial County Air Pollution Control District, had standing to sue. The panel

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nonetheless affirmed the judgment because the district court correctly held in the alternative that the Secretary of the Interior did not violate the National Environmental Policy Act. The panel also held that the record below made plain that the Secretary did not violate the Clean Air Act.

COUNSEL

Michael L. Rood and Katherine Turner, County of Imperial, County Counsel, El Centro, California, for Plaintiffs-Appellants-Cross-Appellees.

Alene M. Taber (argued), Michael L. Tidus, Kathryn M. Casey, and Jonathan E. Shardlow, Jackson, DeMarco, Tidus, Peckenpaugh, Irvine, California, for Plaintiffs-Appellant-Cross-Appellee People of the State of California ex rel. Imperial County Air Pollution Control District, and Imperial County Air Pollution Control District.

Antonio Rossmann, Roger B. Moore, and Barton Lounsbury, Rossmann and Moore, LLP, San Francisco, California, for Plaintiffs-Appellants-Cross-Appellees County of Imperial.

Ignacia S. Moreno, Assistant Attorney General, David C. Shilton, Stephen M. Macfarlane, Norman L. Rave, Jr., and Peter J. McVeigh (argued), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Robert Snow, M. Rodney Smith, Jr., Office of the Solicitor, United States Department of the Interior, Washington, D.C., for Defendants-Appellees.

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Kurt R. Wiese, General Counsel, and Barbara Baird, District Counsel, Diamond Bar, California, for Amicus Curiae South Coast Air Quality Management District.

Catherine Redmond, District Counsel, Fresno, California, for Amicus Curiae San Joaquin Valley Unified Air Pollution Control District.

Katherine C. Pittard, District Counsel, Sacramento, California, for Amicus Curiae Sacramento Metropolitan Air Quality Management District.

Dennis Marshall, County Counsel, and William M. Dillon, Senior Deputy, Santa Barbara, California, for Amicus Curiae Santa Barbara County Air Pollution Control District.

Nancy Diamond, District Counsel, Law Offices of Nancy Diamond, Arcata, California, for Amicus Curiae North Coast Unified Air Quality Management District.

David D. Cooke, Allen Matkins Leck Gamble Mallory & Natsis LLP, San Francisco, California; David L. Osias and Mark J. Hattam, Allen Matkins Leck Gamble Mallory & Natsis LLP, San Diego, California; Jeffrey M. Garber, General Counsel, Imperial Irrigation District, Imperial, California, for Intervenor-Defendant-Appellee-Cross-Appellant Imperial Irrigation District.

Marcia L. Scully, General Counsel, John D. Schlotterbeck, Senior Deputy General Counsel, Adam C. Kear, Senior Deputy General Counsel, Los Angeles, California; Linus Masouredis, Chief Deputy General Counsel, Sacramento, California, for Intervenor-Defendant-Appellee-Cross-

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Appellant The Metropolitan Water District of Southern California.

Steven B. Abbott and Julianna Strong, Redwine and Sherrill, Riverside, California; Michelle Ouellette and Melissa R. Cushman, Best Best & Krieger LLP, Riverside California, for Intervenor-Defendant-Appellee-Cross-Appellant Coachella Valley Water District.

Lisabeth D. Rothman and Amy M. Steinfeld, Brownstein Hyatt Farber Schreck, LLP, Los Angeles, California; Daniel S. Hentschke, General Counsel, San Diego County Water Authority, San Diego, California, for Intervenor-Defendant-Appellee-Cross-Appellant San Diego County Water Authority.

ORDER

The opinion filed May 19, 2014, and published at 751 F.3d 1113, is amended as follows:

At slip opinion page 32, in the fourth and fifth textual sentences in the second full paragraph,

Change: "Imperial Irrigation, Imperial County, and the State of California, not the Secretary, will ultimately determine how to allocate the water they receive. If they so choose, they could allocate every acre foot of their Colorado River water to the Salton Sea."

To: "Imperial Irrigation, not the Secretary, ultimately controls the allocation of the water that it receives (subject, of course, to existing laws and contractual obligations)."

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At slip opinion page 32, in the first citation sentence in the continuing paragraph,

Change: "§ 93.153(b); Air Rule 925(d)(2)."

To: "§ 93.153(b); Air Rule 925(c)(27), (d)(2), (d)(9)."

We amend the opinion at the suggestion of the Secretary of the Interior and the intervenor defendants because Imperial County and the State of California do not receive water from the Colorado River under water delivery contracts with the Secretary of the Interior. The allocation and use of Colorado River water is of course subject to applicable laws and existing contracts. We also amend the opinion to note that Air Rule 925(d)(9) only applies to the "total of direct and indirect emissions." The superseding amended opinion is filed concurrently with this order.

With these amendments, the panel has voted to deny the appellant's petition for rehearing. Judge Hurwitz and Judge Watford have voted to deny the petition for rehearing en banc. Chief Judge Smith recommends denial of the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the petition for rehearing en banc is rejected. No further petitions for rehearing or rehearing en banc will be entertained.

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OPINION

HURWITZ, Circuit Judge:

The Salton Sea—the largest inland body of water in California—is a creature of accident. In 1905, water from the Colorado River breached an irrigation canal and flooded the then-dry Salton Basin. After the initial flood, irrigation runoff from the Imperial and Coachella Valleys—supplied by the Colorado River—sustained the Sea for more than a century. The Sea has become a unique attraction for water-based recreation in the harsh southern California desert.

The Sea's continued access to Colorado River water is in jeopardy. Over the last few decades Arizona and Nevada began to claim their full entitlements to the stream. California, which has long used more than its share, has been required to conserve. The affected California water districts ultimately agreed to transfer some Colorado River water from the Imperial Valley to urban areas in southern California. The Secretary of the Interior—who controls the delivery of River water—prepared an environmental impact statement ("EIS"), which, among other things, analyzed the effect of these agreements on the Salton Sea. Despite noting some potentially serious environmental consequences, the Secretary eventually approved the agreements and implemented a new water delivery schedule.

Plaintiffs Imperial County and the Imperial County Air Pollution Control District (the "Air District") then sued the Secretary, claiming that the EIS did not comply with either the National Environmental Policy Act ("NEPA") or the Clean Air Act ("CAA"). The Imperial Irrigation District ("Imperial Irrigation"), San Diego County Water Authority

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("San Diego Water"), Coachella Valley Water District ("Coachella"), and Metropolitan Water District of Southern California ("Metropolitan"), parties to the transfer agreements, intervened as defendants. The district court granted summary judgment to the defendants, finding that neither plaintiff had standing to sue. We disagree as to standing, but nonetheless affirm the judgment, because the district court correctly found in the alternative that the Secretary did not violate NEPA; the record below also makes plain that the Secretary did not violate the CAA.

I. Background

In 1922, the Colorado River basin states agreed to divide the River's waters among upper- and lower-basin states. Colorado River Compact, 70 Cong. Rec. 324 (1928). In 1928, Congress ratified the compact in the Boulder Canyon Project Act, Pub. L. No. 70-642, 45 Stat. 1057...