Sierra Club v. U.S. E.P.A.

• Decision Date: 09 October 2003
• Docket Number: No. 01-71902.,01-71902.
• Citation: 346 F.3d 955
• Parties: SIERRA CLUB, Petitioner, Imperial County Air Pollution Control District, Intervenor, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Gale Norton, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

346 F.3d 955

SIERRA CLUB, Petitioner, Imperial County Air Pollution Control District, Intervenor, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Gale Norton, Respondents.

No. 01-71902.

United States Court of Appeals, Ninth Circuit.

Argued February 10, 2003. San Francisco, California

Submission Deferred February 10, 2003.

Resubmitted October 9, 2003

Filed October 9, 2003.

Amended December 18, 2003.

David S. Baron, Earthjustice Legal Defense Fund, Washington, D.C., argued the cause for petitioner Sierra Club and submitted briefs.

Thomas H. Pacheco, United States Department of Justice, San Francisco, California, argued the cause for respondent Environmental Protection Agency and submitted briefs. Thomas L. Sansonetti, Assistant Attorney General, Jan Taradash, Associate Regional Counsel, Environmental Protection Agency, and Geoffrey Wilcox also were on the briefs.

Rick R. Rothman, McCutheon, Doyle, Brown & Enersen, LLP, Los Angeles, California, argued the cause for intervenor Imperial County Air Pollution Control District and submitted briefs. William H. Freedman and Michael S. McDonough also were on the briefs.

Michael S. Rhodes, Cooley Godward LLP, San Diego, California, filed a brief on behalf of amicus curiae American Lung Association of San Diego and Imperial Counties. Andrea S. Hoffman, Robert R. Vieth, and Craig A. Guthery also were on the brief.

On Petition for Review of an Order of the Environmental Protection Agency. EPA No. Clean Air Act.

Before: WILLIAM C. CANBY, JR., DIARMUID F. O'SCANNLAIN, and WILLIAM A. FLETCHER, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the U.S. Environmental Protection Agency lawfully concluded that a Southern California county would have achieved the 24-hour air quality standards required by the Clean Air Act but for the negative effects of transborder emissions from Mexico.

I

Imperial County encompasses approximately 4,600 square miles in Southeastern California and is bordered by Riverside County to the north, Mexico to the south, Arizona to the east, and San Diego County to the west. The county shares approximately 80 miles of border with Mexico. Calexico, one of three significant population centers in the county, sits close by the border, not far from the Mexican city of Mexicali. Moving north from the border, the county's other two major population centers are El Centro and Brawley. As of 1999, the county had approximately 142,000 inhabitants.

The Imperial Valley runs roughly through the center of the county, from the northwest to the southeast, and across its southern border into Mexico. Most of Imperial County, save for a small stretch of land on the county's eastern end, falls within the Imperial Valley Planning Area ("Imperial Valley"), and Intervenor Imperial County Air Pollution Control District¹ serves as the local governmental agency charged with administering and enforcing the requirements of the Clean Air Act and other federal, state and local air quality laws and regulations.

In 1987, pursuant to the Clean Air Act, 42 U.S.C. §§ 7401-7671q ("CAA" or "Act"), the U.S. Environmental Protection Agency ("EPA") adopted new national ambient air quality standards ("NAAQS") based on health studies demonstrating the harmful health effects of particulate matter.² See 42 U.S.C. § 7409. To comply with such standards, the expected concentration of PM-10 in a given area of the country cannot exceed (1) 150 g/m3 for more than one day per calendar year (the "24-hour standard") or (2) an expected annual arithmetic mean of 50 g/m3 (the "annual standard"). 40 C.F.R. §§ 50.6(a) and (b). The States are responsible for ensuring compliance with both standards for PM-10 and must formulate a state implementation plan ("SIP") for doing so. See 42 U.S.C. §§ 7407(a) and 7410(a).

In 1990, Congress once again amended the Act to classify areas of the country as "attainment" or "nonattainment," the former classification comprising those areas that had met the NAAQS for PM-10, the latter those that had not. 42 U.S.C. § 7407(d).³ The amendments provided for a further level of classification among those areas designated as nonattainment as either "moderate" or "serious." Id. § 7513.

Imperial Valley was classified as a moderate PM-10 nonattainment area.⁴ The Act required such "moderate" areas to meet the NAAQS by December 31, 1994(the "attainment date"). id. § 7513(c)(1). Moderate areas failing to comply with the NAAQS, by the terms of the Act, would be reclassified as "serious," id. § 7513(b)(2), and assigned a later attainment date, December 31, 2001, but would be required to adopt more stringent pollution controls. Id. §§ 7513(c)(2) & 7513a(b).

The 1990 Amendments also included a provision, CAA § 179B, which spared from § 7513(b)(2) reclassification "any State that establishes to the satisfaction of the Administrator that, with respect to a PM-10 nonattainment area in such State, such State would have attained the national ambient air quality standard for carbon monoxide⁵ by the applicable attainment date, but for emissions emanating from outside the United States." 42 U.S.C. § 7509a(d). EPA issued administrative guidance in 1994 setting forth "several types of information [that] may be used to evaluate the impact of emissions emanating from outside the U.S." and demonstrate that a border area's failure to meet the NAAQS was due to such foreign emissions. State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 59 Fed.Reg. 41,998 (Proposed Aug. 16, 1994) ("General Preamble guidance" or "guidance").

The five examples suggested by the EPA's General Preamble guidance are:

1. The use of PM-10 monitors and meteorological information near the border to "[e]valuate and quantify any changes in monitored PM-10 concentrations with a change in the predominant wind direction." 59 Fed.Reg. at 42,001.

2. The compilation of a comprehensive inventory of PM-10 emissions "within the U.S. in the vicinity of the nonattainment area ... [to] demonstrate that the impact of those sources on the nonattainment area after application of reasonably available controls does not cause the NAAQS to be exceeded." Id.

3. Analysis of "ambient sample filters for specific types of particles emanating from across the border (although not required, characteristics of foreign sources may be helpful)." Id.

4. A comparison between inventories of emission sources on both sides of the border and the relative magnitude of each. Id.

5. The use of "air dispersion and/or receptor modeling to quantify the relative impacts on the nonattainment area of sources located within the U.S. and of foreign sources of PM-10 (this approach combines information collected from the international emission inventory, meteorological stations, ambient monitoring network, and analysis of filters)." Id.

EPA prefaced these examples by noting that "the State may use one or more of these types of information or other techniques, depending on their feasibility and applicability, to evaluate the impact of emissions emanating from outside the U.S. on the nonattainment area." Id. EPA added that it "will consider the information presented by the state for individual attainment areas on a case-by-case basis in determining whether an area may qualify for treatment under section 179B." Id.

Imperial Valley's attainment date — December 31, 1994 — came and went, but EPA took no action regarding reclassification. Almost six years later, when EPA still had not taken any action, the Sierra Club filed suit in U.S. District Court for the District of Columbia to compel EPA to make a reclassification determination regarding Imperial Valley. The suit was resolved by consent decree, under the terms of which EPA agreed to make a reclassification determination for Imperial Valley by October 9, 2001.

On August 10, 2001, EPA issued a notice of proposed rulemaking ("NPR") in which it proposed "to find that the State of California has established to EPA's satisfaction that the Imperial Valley Planning Area (Imperial County) ... would have attained the national ambient air quality standards (NAAQS) for particulate matter... by the applicable... attainment date, but for emissions emanating from outside the United States, i.e., Mexico." Clean Air Act Finding of Attainment and Alternative Finding of Nonattainment and Reclassification to Serious; California-Imperial Valley Planning Area; Particulate Matter of 10 microns or less (PM-10), 66 Fed.Reg. 42,187 (proposed August 10, 2001).⁶ The EPA action was based on the "Imperial County PM-10 Attainment Demonstration," a document filed on July 18, 2001 and developed by the State which used data culled from six PM-10 monitors in the county, spatial plots,⁷ windroses,⁸ back trajectories,⁹ and a model based upon an inventory of emissions sources in the Imperial Valley. Based upon this information, the State contended that but for emissions from Mexico which were borne aloft and across the border by the wind, the county would have met both the annual and 24 hour standards by the attainment date.

Sierra Club submitted comments opposing the proposed rule, arguing that the State had failed to make the required demonstration. Specifically, Sierra Club contended that (1) under the Act, the State was required to use a certain kind of modeling in order to make the required demonstration; (2) the emissions inventory used by the State in its model was neither current nor accurate; (3) the State had failed to show that emissions from Mexico have actually caused violations to occur at U.S. monitors, but instead had merely assumed such causation; and (4) the State had failed to account for exceedances of the NAAQS after the December 31, 1994 attainment date, let alone show that those exceedances were the result of...