Ober v. Whitman
| Decision Date | 23 March 2001 |
| Docket Number | No. 98-71158,98-71158 |
| Citation | 243 F.3d 1190 |
| Parties | (9th Cir. 2001) EDWARD M. OBER; ROBIN D.SILVER; DAVID MATUSOW; SANDRA L. BAHR, Petitioners, v. CHRISTINE TODD WHITMAN; <A HREF="#fr1-*" name="fn1-*">* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jennifer B. Anderson, Arizona Center for Law in the Public Interest, Phoenix, Arizona, for the petitioners.
Karen Egbert, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the respondents.
Petition to Review a Final Action of the Environmental Protection Agency
Before: Robert Boochever, Melvin Brunetti and Sidney R. Thomas, Circuit Judges.
Edward Ober and other residents of Phoenix, Arizona, appeal from the Environmental Protection Agency's adoption of a federal implementation plan for the Phoenix area under the Clean Air Act. Ober claims that the plan violates the Clean Air Act because it fails to adopt controls for sources of airborne particulate pollution that the agency labels "de minimis."
The attempts by the Environmental Protection Agency ("EPA") to formulate a plan to control air pollution in the Phoenix area pursuant to the Clean Air Act, 42 U.S.C. S 7401 et seq., have been the source of much litigation and administrative revision. Five years ago, this court reversed EPA's approval of Arizona's state implementation plan for the area. Ober v. EPA, 84 F.3d 304 (9th Cir. 1996) ("Ober I"). On remand, EPA adopted a federal implementation plan for the Phoenix area. In this appeal, Phoenix citizens, including asthma sufferers who are particularly sensitive to particulate pollution, challenge EPA's failure to require controls on sources of particulate pollution that EPA labels "de minimis."
Under the Clean Air Act, EPA has identified airborne particulate matter under ten microns in size, known as "PM-10," as a pollutant to be regulated under state and federal programs. EPA promulgated two national ambient air quality standards ("NAAQS") for PM-10 pollution, an annual standard and a 24-hour standard. See Ober I, 84 F.3d at 306; 40 C.F.R. S 50.6. Each state must submit to EPA a state implementation plan to comply with the NAAQS; if EPA disapproves the state plan, EPA formulates a federal implementation plan for the area. See 42 U.S.C. SS 7410(C), 7509.
An area that does not meet the national ambient air quality standards for PM-10 is classified as either a "moderate" or "serious" "nonattainment area."1 Phoenix did not meet the standards. Under the 1990 amendments to the Act, Phoenix was classified as a moderate nonattainment area required to attain the NAAQS, with a deadline of December 31, 1994. The Act requires each state that contains areas with moderate levels of PM-10 pollution to submit a state implementation plan ("SIP"), describing "reasonably available control measures" to bring the PM-10 pollution within the national ambient air quality standards "as expeditiously as practicable," within a deadline set at the time the area is designated as moderate. 42 U.S.C. SS 7502(c)(1), 7513, 7513a(a)(1)(C). If the state implementation plan cannot show attainment of the NAAQS by the deadline, it must demonstrate that attainment by that date is "impracticable," and EPA may reclassify the area as a serious nonattainment area. 42 U.S.C. S 7513a(a)(1)(B)(ii), (b)(2).
The state of Arizona submitted to EPA its SIP for Phoenix, in which it stated that it would be impracticable to attain the national standard for annual PM-10 pollution by the deadline. EPA approved the plan in 1995. Under the Act, because the SIP stated that attaining the PM-10 standard would be impracticable, Phoenix was reclassified in June, 1995 from a moderate to a serious nonattainment area for PM-10. Ober I, 84 F.3d at 307. The state was still required to submit a moderate area plan, however. Id. at 311 n.2.
In Ober I, we reversed EPA's approval of Arizona's state implementation plan for reasons not at issue here, and remanded so that EPA could consider a revised SIP. Id. at 316. On remand, EPA directed the state to revise the SIP, and in 1997 EPA disapproved the revised state plan. Under the Act, because EPA did not approve the state plan, the agency had a duty to promulgate a federal implementation plan ("FIP") for the Phoenix area to meet all the requirements that the disapproved SIP failed to satisfy. See 42 U.S.C. SS 7410(c)(1)(B), 7602(y).
EPA proposed the FIP in April 1998, and after public comment adopted a final federal plan in August 1998. The FIP concluded that attainment of the Clean Air Act standards for PM-10 by the statutory deadline of December 31, 2001 was "impracticable." See 42 U.S.C. S 7513(c)(2) (). The FIP exempted from control a variety of sources of PM-10 pollution that EPA considered "de minimis."
Ober filed a petition for review of final agency action in this court under 42 U.S.C. S 7607(b)(1). At issue is whether EPA acted arbitrarily and capriciously by exempting from control measures sources of PM-10 pollution it considered "de minimis."
This court reviews the final administrative actions of EPA pursuant to the Clean Air Act under the standard set forth in the Administrative Procedure Act. We reverse an EPA decision "only if it is arbitrary, capricious, or contrary to law or if it exceeds the statutory jurisdiction, authority, or limitations." Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1248 (9th Cir. 2000). We review EPA's interpretation of the Clean Air Act by asking whether Congress' intent is clear, and if it is not, whether EPA's interpretation is permissible. See id. (citing Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)).
The FIP stated that it was "impracticable" to attain the national ambient air quality standards ("NAAQS") for PM-10 particulate pollution by the deadline. EPA made this "impracticability" determination while proposing no controls at all for some of the sources of PM-10 pollution which it labeled "de minimis" sources. EPA concluded that, because these sources were "de minimis," there were no reasonably available control measures to reduce the PM-10 pollution these sources generated. It is that equation that is before us in this appeal. We must determine whether the Clean Air Act allows EPA to make de minimis exemptions, and, if so, whether EPA acted reasonably in designating some sources of PM-10 pollution as de minimis.
The first question is whether, under the Clean Air Act, EPA has the power to exempt "de minimis" sources of pollution from controls.
The Act requires that a plan to reduce air pollution in a moderate nonattainment area (such as the plan required in this case) must include either "reasonably available control measures" ("RACM") to bring the PM-10 pollution levels within national standards by a specified deadline, or "a demonstration that attainment by such date is impracticable." 42 U.S.C. S 7513a(a)(1)(B)-(C). The Act makes no explicit provision for a "de minimis" exception.
EPA issued a "General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990" in April 1992. The Preamble, in describing how a moderate area planshould identify RACM for PM-10 pollution, states:
If it can be shown that one or more measures are unreasonable because emissions from the sources affected are insignificant (i.e., de minimis), those measures may be excluded from further consider ation as they would not represent RACM for that area.
57 Fed. Reg. at 13,498, 13,540. An accompanying footnote explains:
Where the sources affected by a particular measure contribute only negligibly to ambient concentrations that exceed the NAAQS, EPA's policy is that it would be unreasonable and therefore would not con stitute RACM to require controls on the source. In this regard, it is worth noting that the inherent authority of administrative agencies to exempt de minimis situations has been recognized in contexts such as this where an agency is invoking a de minimis exemption as "a tool to be used in imple menting the legislative design."
Id. at 13,541 (quoting Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979)). Although the Preamble assumes that de minimis levels of PM-10 can be exempted from controls in moderate nonattainment areas, it does not establish thresholds for de minimis sources.
In Alabama Power, the District of Columbia Circuit held that EPA could exempt de minimis sources of air pollution from the requirements of the Clean Air Act:
Categorical exemptions may . . . be permissible as an exercise of agency power, inherent in most statutory schemes, to overlook circumstances that in context may fairly be considered de minimis. It is common place, of course, that the law does not concern itself with trifling matters, and this principle has often found application in the administrative context. Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . . . The ability . . . to exempt de minimis situ ations from a statutory command is not an ability to depart from the statute, but rather a tool to be used in implementing the legislative design.
636 F.2d at 360 (emphasis added); see Industrial Union Dept., AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 663-64(1980) () (Burger, C.J., concurring) (citing Alabama Power).
This court has not explicitly held that the Clean Air Act is subject to de minimis exemptions. We have, however,...
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