Vigil v. Leavitt, No. 02-72424.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Bybee
• Citation: 381 F.3d 826
• Decision Date: 10 May 2004
• Docket Number: No. 02-72424.
• Parties: Martha VIGIL, Andy Blackledge and Robin Silver, Petitioners, v. Michael O. LEAVITT,<SMALL><SUP>*</SUP></SMALL> Administrator, United States Environmental Protection Agency; Wayne Nastri, Regional Administrator, Region IX; and United States Environmental Protection Agency, Respondents.

381 F.3d 826 Martha VIGIL, Andy Blackledge and Robin Silver, Petitioners,
v.
Michael O. LEAVITT,^* Administrator, United States Environmental Protection Agency; Wayne Nastri, Regional Administrator, Region IX; and United States Environmental Protection Agency, Respondents. No. 02-72424. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 2003. Filed May 10, 2004. Amended September 1, 2004.

On Petition for Review of an Order of the Environmental Protection Agency.

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Joy E. Herr-Cardillo, Arizona Center for Law in the Public Interest, Tucson, AZ, for the petitioners.

Angeline Purdy, Trial Attorney, Environmental Defense Section, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C., and Daniel W. Pinkston, Senior Trial Attorney, Denver, CO, for the respondents.

Richard S. Moskowitz, American Trucking Associations, Inc., Alexandria, VA, for the amicus curiae.

Before GRABER, WARDLAW, and BYBEE, Circuit Judges.

ORDER AMENDING OPINION AND GRANTING IN PART RESPONDENTS' MOTION FOR CLARIFICATION OR FOR REHEARING BY THE PANEL AND AMENDED OPINION ORDER

The opinion, filed May 10, 2004, slip opinion 595, and appearing at 366 F.3d 1025 (9th Cir.2004), is amended as follows:

1. At slip op. 5967, first full paragraph, line 25; 366 F.3d at 1033, second full paragraph, line 39, delete "and applied here in the approval of Arizona's SIP."

2. At slip op. 5967, first full paragraph, line 26; 366 F.3d at 1033, second full paragraph, line 41, insert the following: "We need not resolve the question whether the EPA's interpretation of the Act in the course of approving Arizona's SIP is entitled to Chevron deference, because the result in the present case would be the same under any standard of deference."

With these amendments, the panel has voted to grant in part respondents' motion for clarification or for rehearing by the panel. Respondents' Motion for Clarification or for Rehearing by the Panel has been considered and it is GRANTED IN PART. No further petitions for rehearing may be filed.

OPINION

BYBEE, Circuit Judge:

Martha Vigil, Andy Blackledge and Robin Silver petition for review of a final rule approved by the Environmental Protection Agency (EPA) under the Clean Air Act, 42

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U.S.C. §§ 7401-7671q. On July 25, 2002, EPA approved Arizona's serious area state implementation plan for airborne particulate matter in the metropolitan Phoenix (Maricopa County) area and granted Arizona's request for an extension of the statutory attainment deadline from December 31, 2001, to December 31, 2006.¹

Petitioners, who are interested Phoenix residents, assert that EPA's actions are arbitrary and capricious or otherwise not in accordance with the Act because EPA approved Arizona's general permit rule for controlling agricultural emissions without requiring all feasible measures and, specifically, controls currently implemented in the South Coast region of California. Petitioners also argue that EPA approved the plan without requiring Arizona to mandate the use of CARB diesel, a fuel standard adopted by the California Air Resources Board. Finally, petitioners argue that it was arbitrary and capricious for EPA to grant an extension of the statutory deadline to December 31, 2006. We grant the petition in part, vacate portions of EPA's final approval of Arizona's state implementation plan for Maricopa County, and remand to EPA.

FACTS AND PROCEEDINGS BELOW

A. Regulatory Background

The Clean Air Act sets forth a cooperative state-federal scheme for improving the nation's air quality. Under the Act, the EPA publishes a list of air pollutants and then establishes national ambient air quality standards (NAAQS) for each pollutant that it has identified. 42 U.S.C. §§ 7408(a), 7409(a). EPA has identified airborne particulate matter of diameter 10 micrometers or less (PM-10) as an air pollutant that "affects the respiratory system and can cause damage to lung tissue and premature death. The elderly, children, and people with chronic lung disease, influenza, or asthma are especially sensitive to high levels of particulate matter." Promulgation of Federal Implementation Plan for Arizona—Phoenix PM-10 Moderate Area; Disapproval of State Implementation Plan for Arizona—Phoenix PM-10 Moderate Area, 63 Fed.Reg. 41,326, 41,326 (Aug. 3, 1998). EPA has established two national air quality standards for PM-10, a 24-hour standard and an annual standard. 40 C.F.R. § 50.6(a), (b); see Sierra Club v. EPA, 346 F.3d 955, 957-58 (9th Cir.), amended by 352 F.3d 1186 (9th Cir.2003); Ober v. EPA, 84 F.3d 304, 306 & n. 1 (9th Cir.1996) (Ober I).

Under the Clean Air Act Amendments of 1990, Congress designated certain areas as "nonattainment" for the PM-10 standards. See Pub.L. No. 101-549, § 101(a), 104 Stat. 2399, 2403 (codified at 42 U.S.C. § 7407(d)(4)(B)). Congress further required that these PM-10 nonattainment areas be classified by law as "[m]oderate [a]rea[s]." 42 U.S.C. § 7513(a). Moderate PM-10 nonattainment areas may be reclassified as serious PM-10 nonattainment areas under specified circumstances; among other things, any area that fails to reach attainment by the applicable date "shall be reclassified by operation of law as a Serious Area." 42 U.S.C. § 7513(b)(2)(A).

Each state has "primary responsibility for assuring air quality" within the region comprising such state, 42 U.S.C. § 7407(a), and each state must submit a state implementation plan (SIP) proposing the manner in which the state will satisfy the NAAQS, see id. § 7410(a). In the event that a state does not submit a SIP or does

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not submit a satisfactory plan within the specified time, the EPA Administrator shall promulgate a federal implementation plan (FIP). See id. § 7410(c).

The Act specifies different standards that SIPs in particulate matter nonattainment areas must satisfy, depending on whether an area is designated as "moderate" or "serious." A SIP for a PM-10 moderate area must, among other things, include assurances that "reasonably available control measures" (RACM) will be implemented by the specified implementation deadlines. 42 U.S.C. § 7513a(a)(1)(C) (emphasis added); see also id. § 7502(c)(1). All moderate areas were to reach attainment by December 31, 1994. 42 U.S.C. § 7513(c)(1). By contrast, a state implementation plan for a PM-10 serious area must satisfy the requirements for a moderate area and must further demonstrate that the "best available control measures" (BACM) will be implemented within four years after the area is classified as "serious." 42 U.S.C. § 7513a(b)(1)(B) (emphasis added). All serious areas were to reach attainment by December 31, 2001. 42 U.S.C. § 7513(c)(2).

Finally, the Administrator may extend the attainment date for a PM-10 serious area under various conditions and after various procedures are satisfied. 42 U.S.C. § 7513(e). These include that attainment by the specified date would be "impracticable," that the state "has complied with all requirements and commitments pertaining to that area in the implementation plan," and that the state "demonstrates to the satisfaction of the Administrator that the plan for that area includes the most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State, and can feasibly be implemented in the area." Id. The last of those three standards is referred to as "most stringent measures" (MSM).

B. Proceedings Below

The proceedings below are both numerous and complex. This is the fourth petition for review filed before us concerning implementation of the particulate matter NAAQS in the Phoenix metropolitan area. We issued published opinions in the first two petitions and dismissed the third petition as moot. Ober I, 84 F.3d 304; Ober v. Whitman, 243 F.3d 1190 (9th Cir.2001) (Ober II); Ober v. Browner, No. 99-71107 (9th Cir. Nov. 7, 2001) (order dismissing petition as moot); see also Delaney v. EPA, 898 F.2d 687 (9th Cir.1990) (decided prior to the Clean Air Act Amendments of 1990), abrogation recognized by Ober I, 84 F.3d at 311.

Under the Act as amended in 1990, Phoenix was designated by law as a moderate nonattainment area for PM-10. 42 U.S.C. § 7513(a). In November 1991, Arizona submitted its moderate area PM-10 state implementation plan, which EPA rejected as incomplete. See Approval and Promulgation of Implementation Plans; Arizona—Phoenix Nonattainment Area; PM10, 59 Fed.Reg. 38,402, 38,403 (July 28, 1994). Arizona submitted a revised plan in 1994, which EPA approved. Approval and Promulgation of Implementation Plans; Arizona—Phoenix Nonattainment Area; PM10, 60 Fed.Reg. 18,010 (Apr. 10, 1995). Phoenix residents petitioned this court for review of EPA's action. We granted the petition on the grounds that EPA failed to address "reasonably available control measures" and other aspects of the implementation plan for the 24-hour standard. We held that the Act required Arizona to reduce violations of the 24-hour standard irrespective of whether such measures would contribute to attaining the annual standard. Ober I, 84 F.3d at 309-11.

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Contemporaneously with our decision, EPA found that Arizona had not attained either the 24-hour standard or the annual standard for PM-10 by the statutory deadline, December 31, 1994. Clean Air Act Reclassification; Arizona-Phoenix Nonattainment Area; PM10, 61 Fed.Reg. 21,372, 21,372-73 (May 10, 1996). As a result of this finding, Arizona was reclassified as a serious PM-10 nonattainment area by operation of law. 42 U.S.C. § 7513(b)(2)(A). Under the Act, Arizona had to submit a new state implementation plan within eighteen months. Id. § 7513a(b)(2).

Following our decision in Ober I and Arizona's reclassification as a serious nonattainment area, EPA and Arizona agreed that Arizona should divide its planning efforts into two stages: the state...