California ex rel. Imperial County Air Pollution Control District v. U.S. Department of the Interior
767 F.3d 781
| 9th Cir. | 2014Background
- The Salton Sea has been sustained largely by Colorado River water via runoff from Imperial and Coachella Valleys; transfer agreements threatened its inflows.
- Federal actors (Secretary of the Interior, Bureau of Reclamation) prepared an Implementation Agreement EIS to evaluate changing Colorado River delivery points per Quantification Settlement Agreements and related transfers among California water districts.
- Imperial County and the Imperial County Air Pollution Control District sued, alleging the Implementation Agreement EIS violated NEPA and that the Secretary failed to make a Clean Air Act (CAA) conformity determination regarding PM10 emissions from expanded Salton Sea shoreline.
- District court granted summary judgment to defendants for lack of standing and alternatively rejected NEPA claims; Ninth Circuit found plaintiffs had Article III standing but affirmed because the Secretary complied with NEPA and did not violate the CAA.
- Key factual disputes involved (1) whether the Implementation Agreement EIS properly incorporated and tiered to prior Transfer EIS/EIR materials, (2) whether a supplemental EIS was needed after mitigation changes, and (3) whether the Secretary had ‘‘practical control’’ over indirect PM10 emissions for CAA conformity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue (NEPA & CAA procedural claims) | Plaintiffs alleged procedural injury: inadequate EIS and missing conformity determination risking PM10 nonattainment and interference with county land-use plans | Secretary argued plaintiffs lacked concrete, particularized facts to show injury | Court: Plaintiffs have Article III standing (procedural injury, causation, redressability satisfied) |
| NEPA adequacy / need for supplemental EIS | EIS failed to properly incorporate/describe referenced documents, improperly tiered/incorporated non-NEPA documents, segmented analyses, and changes to mitigation (SSHCS) required supplementation | Secretary: EIS reasonably incorporated Transfer EIS, tiering/incorporation not abused, segmentation justified; mitigation alternatives and ESA §7 consultation considered; supplemental EIS not required | Court: De novo review finds Secretary took a "hard look;" incorporation and tiering were proper, segmentation and no-supplement decision not an abuse of discretion; alternatives discussion adequate |
| CAA conformity determination (PM10) | CRWDA will expand Salton Sea shoreline, increasing fugitive dust (PM10); Secretary should have performed full conformity determination | Secretary: Project only changes water delivery points; direct emissions not at same time/place; any indirect emissions are not practicably controlled by federal agency (Imperial Irrigation controls allocation) | Court: Secretary did not violate CAA; neither direct nor indirect emissions were practicably controlled by the Secretary; no required conformity determination |
| Use of incorporated materials and form of deliberation (e.g., environmental evaluation vs. EA) | Secretary relied on non-NEPA documents and an environmental evaluation instead of an EA/supplemental EIS, undermining public review | Secretary: CEQ regs permit incorporation by reference and various forms for explaining no-supplement decision; public review sufficed | Court: Harmless or permissible under NEPA; use of incorporated documents and environmental evaluation acceptable |
Key Cases Cited
- Arizona v. California, 373 U.S. 546 (U.S. 1963) (allocation limits of Colorado River to California)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing principles for non–object-of-action plaintiffs)
- Summers v. Earth Island Institute, 555 U.S. 488 (U.S. 2009) (procedural standing requirements)
- Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (U.S. 2013) (specific facts required at summary judgment to show standing)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (U.S. 1989) (deference to agency technical expertise in NEPA review)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (EIS must discuss mitigation but agency need not adopt final mitigation plan)
- Kleppe v. Sierra Club, 427 U.S. 390 (U.S. 1976) (deference to agency discretion on NEPA scope and segmentation)