El Comite Para El Bienestar v. Warmerdam

• Citation: 539 F.3d 1062
• Decision Date: 20 August 2008
• Docket Number: No. 06-16131.,No. 06-16000.,06-16000.,06-16131.
• Parties: EL COMIT&#201; PARA EL BIENESTAR DE EARLIMART, an unincorporated association; Community & Children's Advocates Against Pesticide Poisoning, a California non-profit corporation Wishtoyo Foundation, a California non-profit corporation Ventura Coastkeeper, a California non-profit corporation Association of Irritated Residents, an unincorporated association, Plaintiffs-Appellees, and Air Coalition Team, Intervenor, v. Mary-Ann WARMERDAM,<SMALL><SUP>*</SUP></SMALL> in her official capacity as Director Department of Pesticide Regulation; Linda Adams, in her official capacity as Secretary, CA Environmental Protection Agency; James Goldstene, in his official capacity as Executive Officer, CA Air Resources Board; Mary Nichols, in her official capacity as Chair, CA Air Resources Board; William Burke, in his official capacity as Member, CA Air Resources Board; CA Joseph Calhoun, in his official capacity as Member, CA Air Resources Board; Dorene D'Adamo, in her official capacity as Member, CA Air Resources Board; Mark Desaulnier, in his official capacity as Member, CA Air Resources Board; C. Hugh Friedman, in his official capacity as Member, CA Air Resources Board; Matthew McKinnon, in his official capacity as Member, CA Air Resources Board; Barbara Patrick, in her official capacity as Member, CA Air Resources Board; Barbara Riordan, in her official capacity as Member, CA Air Resources Board; Ron Roberts, in his official capacity as Member, CA Air Resources Board; Robert F. Sawyer, Chair, CA Air Resources Board; William F. Friedman, in his official capacity as Member, CA Air Resources Board, Defendants-Appellants. El Comit&#233; Para el Bienestar de Earlimart, an unincorporated association; Community & Children's Advocates Against Pesticide Poisoning, a California non-profit corporation Wishtoyo Foundation, a California non-profit corporation Ventura Coastkeeper, a California non-profit corporation Association of Irritated Residents, an unincorporated association, Plaintiffs-Appellees, Air Coalition Team, Intervenor-Appellant, v. Mary-Ann Warmerdam, in her official capacity as Director Department of Pesticide Regulation; Linda Adams, in her official capacity as Secretary, CA Environmental Protection Agency; James Goldstene, in his official capacity as Executive Officer, Air Resources Board; Mary Nichols, in her official capacity as Chair, CA Air Resources Board; William Burke, in his official capacity as Member, CA Air Resources Board; Joseph Calhoun, in his official capacity as Member, CA Air Resources Board; Dorene D'Adamo, in her official capacity as Member, CA Air Resources Board; Mark Desaulnier, in his official capacity as Member, CA Air Resources Board; C. Hugh Friedman, in his official capacity as Member, CA Air Resources Board; Matthew McKinnon, in his official capacity as Member, CA Air Resources Board; Barbara Patrick, in her official capacity as Member, CA Air Resources Board; Barbara Riordan, in her official capacity as Member, CA Air Resources Board; Ron Roberts, in his official capacity as Member, CA Air Resources Board, Defendants, William F. Friedman, in his official capacity as Member, Air Resources Board, Defendant, and Robert F. Sawyer, Chair, CA Air Resources Board, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

539 F.3d 1062

EL COMITÉ PARA EL BIENESTAR DE EARLIMART, an unincorporated association; Community & Children's Advocates Against Pesticide Poisoning, a California non-profit corporation Wishtoyo Foundation, a California non-profit corporation Ventura Coastkeeper, a California non-profit corporation Association of Irritated Residents, an unincorporated association, Plaintiffs-Appellees, and Air Coalition Team, Intervenor, v. Mary-Ann WARMERDAM,^* in her official capacity as Director Department of Pesticide Regulation; Linda Adams, in her official capacity as Secretary, CA Environmental Protection Agency; James Goldstene, in his official capacity as Executive Officer, CA Air Resources Board; Mary Nichols, in her official capacity as Chair, CA Air Resources Board; William Burke, in his official capacity as Member, CA Air Resources Board; CA Joseph Calhoun, in his official capacity as Member, CA Air Resources Board; Dorene D'Adamo, in her official capacity as Member, CA Air Resources Board; Mark Desaulnier, in his official capacity as Member, CA Air Resources Board; C. Hugh Friedman, in his official capacity as Member, CA Air Resources Board; Matthew McKinnon, in his official capacity as Member, CA Air Resources Board; Barbara Patrick, in her official capacity as Member, CA Air Resources Board; Barbara Riordan, in her official capacity as Member, CA Air Resources Board; Ron Roberts, in his official capacity as Member, CA Air Resources Board; Robert F. Sawyer, Chair, CA Air Resources Board; William F. Friedman, in his official capacity as Member, CA Air Resources Board, Defendants-Appellants El Comité Para el Bienestar de Earlimart, an unincorporated association; Community & Children's Advocates Against Pesticide Poisoning, a California non-profit corporation Wishtoyo Foundation, a California non-profit corporation Ventura Coastkeeper, a California non-profit corporation Association of Irritated Residents, an unincorporated association, Plaintiffs-Appellees Air Coalition Team, Intervenor-Appellant, v. Mary-Ann Warmerdam, in her official capacity as Director Department of Pesticide Regulation; Linda Adams, in her official capacity as Secretary, CA Environmental Protection Agency; James Goldstene, in his official capacity as Executive Officer, Air Resources Board; Mary Nichols, in her official capacity as Chair, CA Air Resources Board; William Burke, in his official capacity as Member, CA Air Resources Board; Joseph Calhoun, in his official capacity as Member, CA Air Resources Board; Dorene D'Adamo, in her official capacity as Member, CA Air Resources Board; Mark Desaulnier, in his official capacity as Member, CA Air Resources Board; C. Hugh Friedman, in his official capacity as Member, CA Air Resources Board; Matthew McKinnon, in his official capacity as Member, CA Air Resources Board; Barbara Patrick, in her official capacity as Member, CA Air Resources Board; Barbara Riordan, in her official capacity as Member, CA Air Resources Board; Ron Roberts, in his official capacity as Member, CA Air Resources Board, Defendants, William F. Friedman, in his official capacity as Member, Air Resources Board, Defendant, and Robert F. Sawyer, Chair, CA Air Resources Board, Defendant-Appellant.

No. 06-16000.

No. 06-16131.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2008.

Filed August 20, 2008.

Edmund G. Brown, Jr., Attorney General of the State of California, James Humes, Chief Deputy Attorney General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, John Davidson, Supervising Deputy Attorney General, Michael W. Neville, Deputy Attorney General of California, San Francisco, CA, for the defendants-appellants.

Jan L. Kahn and Rissa A. Stuart, Hanford, CA, for appellant-intervenors.

Brent Newell and Luke W. Cole, Center for Race, Poverty & the Environment, San Francisco, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, District Judge, Presiding. D.C. No. CV-04-00882-LKK.

Before: DIARMUID F. O'SCANNLAIN, HAWKINS, and M. MARGARET McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

This case involves a challenge under § 304 of the Clean Air Act ("CAA"), see 42 U.S.C. § 7604(a), known as the citizen suit provision. A coalition of community organizations ("El Comité") brought suit against California state officials ("California") responsible for designing and implementing a state air quality plan. The complicated approval process for the State Implementation Plan ("SIP") required much back-and-forth between California and the Environmental Protection Agency ("EPA"). El Comité takes issue with both the process by which California obtained EPA approval of the SIP and the final outcome of that approval process. In particular, El Comité argues that California violated federal law by failing to adhere to the SIP approved by the EPA, which it argues required California to implement additional regulations in five areas where air quality standards for reducing harmful emissions have not been met. California went astray, according to El Comité, by using the wrong data to calculate the baseline for its emission standards and by ignoring deadlines that were intended to be incorporated into EPA's final approval of the SIP. El Comité's claim turns on determination of what documents were incorporated into the final SIP and the EPA rule, and interpretation of what the SIP, and hence federal law, requires of California.

The district court concluded that it did not have jurisdiction to review El Comité's claim regarding the data and methodology used by California to calculate the baseline for emissions standards. The court agreed, however, with El Comité's expansive interpretation of the SIP, and ordered relief based on that interpretation. That relief was also built on the methodology El Comité advocated for use in calculating the base-line — the same methodology the district court had held it was without jurisdiction to review. As it carefully worked through the parties' labyrinthine administrative law arguments, the court acknowledged that its rulings were potentially incongruous. We agree. In our view, the district court ultimately exceeded its jurisdiction. Because § 304 of the CAA provides jurisdiction only to enforce an "emission standard or limitation," and because the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. THE SIP PROCESS UNDER THE CLEAN AIR ACT

To protect public health and welfare, the CAA requires the EPA to establish National Ambient Air Quality Standards ("NAAQS") for certain air pollutants. 42 U.S.C. § 7409. The Act places much of its enforcement burden on the states, which are required to submit SIPs that show how states will attain the standards for major air pollutants. Id. § 7410. Before a SIP becomes effective, the EPA must determine that it meets the CAA's requirements. Id. § 7410(k)(3). Once the EPA approves a SIP, it becomes federal law. Safe Air for Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir.2007); Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm'n, 366 F.3d 692, 695 (9th Cir. 2004);

Each state is required to designate the areas within its boundaries where the air quality meets the NAAQS ("attainment areas"), and those where the air quality fails to meet the NAAQS ("nonattainment areas") for each pollutant targeted for emissions reductions. 42 U.S.C. § 7407(d)(1)(A). SIPs must include an attainment demonstration, a technical analysis that through air quality modeling demonstrates that the "control measures" proposed by the SIP will ensure that these nonattainment areas attain the NAAQS by the applicable deadline. Id. § 7502(c)(1). Plan provisions for nonattainment areas must contain "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 deadline. Id. § 7502(c)(6); see also Sierra Club v. EPA, 356 F.3d 296, 299 (D.C.Cir.2004).

B. CALIFORNIA'S 1994 SIP PROCESS AND EPA REVIEW AND APPROVAL

Under threat of an EPA takeover of the state's air quality planning, the California Air Resources Board ("CARB"), the state agency responsible for preparing and submitting a SIP for EPA approval, submitted the 1994 SIP. See Cal. Health & Safety Code § 39602. The SIP includes a subsection (known as "the Pesticide Element") prepared by the California Department of Pesticide Regulation ("DPR") that proposes strategies for reducing volatile organic compound ("VOC")¹ emissions from agricultural and commercial structural pesticides.

The Pesticide Element set a "goal" of reducing, by 2005, pesticide-related emissions from the 1990 baseline by a "maximum of 20 percent," and provided that "a decision whether additional regulatory measures to ensure that reductions in pesticidal VOC emissions are achieved will be made by 1997" (emphasis added). A timeline at the end of the Pesticide Element states that the decision on regulations will be made by November 1997, with the implementation of the plan to occur by December 1998. The plan's summary also states that by December 1998, "[i]mplementation of additional regulatory measures, if necessary, will take place to ensure that targeted pesticidal VOC reductions occur" (emphasis added).

After California submitted the Pesticide Element, considerable discussion took place through correspondence between David Howekamp, Director of EPA Region IX Air Division, and DPR Director James Wells. Howekamp expressed concern that the proposed SIP was not complete enough for EPA review. Specifically, EPA was concerned that the SIP lacked specific...