836 F.3d 1218
9th Cir.2016Background
- Maricopa County (Phoenix) was designated a PM-10 nonattainment area, reclassified from Moderate to Serious after failing the 1994 deadline; Arizona obtained a 5-year extension in 2002 based on a SIP the EPA approved as meeting BACM/MSM.
- Arizona failed to attain by the extended deadline (2006) and submitted a §7513a(d) "Five Percent Plan" in 2012 that committed to annual 5% PM-10 reductions and included contingency measures.
- The Five Percent Plan sought EPA concurrence that 135 exceedances (2010–2012) were "exceptional events" caused by high-wind dust storms and thus excludable from attainment determinations under 40 C.F.R. §50.14 and EPA guidance.
- Four of five contingency measures in the Plan were infrastructure changes already completed (paving, stabilizing roads, speed limits); the fifth involved sweepers that had been procured earlier.
- EPA approved the Five Percent Plan in 2014: (1) declined to require updated BACM/MSM demonstrations for the Five Percent Plan; (2) excluded 135 exceedances as exceptional events after finding "reasonable controls" in place; and (3) approved the already-implemented contingency measures.
- Petitioners Bahr and Matusow sought review, arguing EPA erred on BACM/MSM, exceptional-event exclusions (contrary to EPA guidance), and approval of pre-implemented contingency measures (contrary to 42 U.S.C. §7502(c)(9)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA had to require updated BACM/MSM in the Five Percent Plan | Petitioners: Five Percent Plan must demonstrate BACM and MSM; 2000 BACM/MSM findings are stale and agricultural measures were later identified as not-BACM | EPA: BACM triggered by reclassification; MSM triggered by EPA-granted extension; §7513a(d) for five-percent plans does not itself require fresh BACM/MSM demonstrations | Held: EPA permissibly relied on earlier BACM/MSM approvals; no statutory trigger required new demonstrations; EPA not arbitrary |
| Whether EPA properly excluded 135 exceedances as "exceptional events" | Petitioners: EPA departed from its Interim Guidance requiring recent BACM review and adequate upwind/source analysis; agricultural sources problematic | EPA: Guidance is flexible; prior 2002 BACM findings plus subsequent local strengthening and low agricultural contribution justified "reasonable controls"; Arizona described upwind sources and controls | Held: Court defers to EPA technical judgments; exclusion upheld as non-arbitrary and consistent with guidance |
| Whether EPA followed its own Interim Guidance re: upwind sources and controls | Petitioners: Arizona failed to identify or show controls for upwind/pinal sources; EPA ignored guidance expectations | EPA: Arizona provided conceptual models and evidence of Pinal County rules; controls appropriate for Pinal’s attainment/planning status at relevant times | Held: EPA reasonably concluded submissions adequate; no abuse of discretion |
| Whether contingency measures must be prospective (not already implemented) under §7502(c)(9) | Petitioners: Contingency measures must be measures "to be undertaken" or "to take effect" upon failure—i.e., future actions | EPA (and Dissent): Statute allows measures already implemented to qualify if they provide additional reductions and are not relied upon for attainment; early implementation is consistent with CAA's protective purpose | Held: Statute unambiguous; contingency measures are prospective; EPA’s approval of previously implemented measures violated §7502(c)(9); remanded for further consideration |
Key Cases Cited
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (establishing two-step deference framework for agency statutory interpretation)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretation of its own regulations)
- Motor Vehicle Manufacturers Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (arbitrary and capricious review standard)
- Alaska Department of Environmental Conservation v. EPA, 540 U.S. 461 (courts must discern agency path even if explanation is less than ideal)
- BCCA Appeal Group v. EPA, 355 F.3d 817 (EPA SIP approvals resolving CAA ambiguities entitled to Chevron deference)
- Louisiana Environmental Action Network v. EPA, 382 F.3d 575 (Fifth Circuit allowed previously-implemented measures as contingency measures)