651 F.3d 1066
9th Cir.2011Background
- NRDC and allied groups sue SCAQMD alleging invalid credits in its offset mechanism under Regulation XIII and the SIP; EPA approved the SIP and acknowledged validity of internal credits in 1996 and 2006 despite NRDC's challenge.
- SCAQMD administers the SIP–Rule 1303 offset mechanism with ERCs and Priority Reserve allocations under Rule 1309/1309.1; NRDC claims internal offsets were invalid or not tracked.
- NRDC alleges three issues: (i) §173(c) offsets are improper and require review; (ii) Regulation XIII imposes validity requirements on internal offsets; (iii) EPA rules require a tracking system for offset reductions.
- The district court dismissed for lack of jurisdiction over §173(c) claims and for failure to state a claim on Regulation XIII validity requirements and tracking-system claims.
- EPA approval rules (1996, 2006) and the SIP context are central; NRDC did not timely seek direct 307(b) review and §304 does not authorize a citizen suit for §173(c); Regulation XIII does not apply its ERC validity requirements to internal offsets; no tracking requirement is mandated by EPA rules or the SIP.
- The Ninth Circuit affirms the district court’s dismissal, holding no §304 subject-matter jurisdiction and no Regulation XIII validity or tracking-system violations.]
- Issues should be read below for precise rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction for §173(c) violations | NRDC seeks 304 relief for §173(c) abuses. | §307(b) exclusive review; timely review not pursued. | Lack of §304 jurisdiction; §173(c) review foreclosed under §307(b). |
| Regulation XIII validity requirements for internal offsets | Regulation XIII imposes ERC validity requirements on internal offsets. | Regulation XIII treats ERCs and internal offsets separately under Rule 1303(b)(2). | Reg XIII does not impose ERC validity requirements on internal offsets; claim dismissed. |
| EPA tracking system requirement | EPA SIP approval implies tracking system for offsets. | Preamble language cannot create binding requirement; SIP text does not mandate tracking. | No EPA-tracking requirement; claims dismissed. |
Key Cases Cited
- Romoland School Dist. v. Inland Empire Energy Ctr., 548 F.3d 738 (9th Cir. 2008) (exclusive § 307(b) review, foreclosing § 304 citizen suit)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (final agency action review; exhausts administrative remedies)
- Safe Air For Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007) (interpretation of SIP preambles and regulatory language)
- El Comité Para El Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062 (9th Cir. 2008) (preamble deference and functional limits of preamble in rule interpretation)
- Conservation Law Foundation v. Busey, 79 F.3d 1250 (1st Cir. 1996) (emissions reductions and non-emission-standard topics under CAA)
- Del. Valley Citizens Council for Clean Air v. Davis, 932 F.2d 256 (3d Cir. 1991) (CAA §172 vs. §173 distinctions on emissions reductions)