ASSOCIATION OF IRRITATED RESIDENTS, a California non-profit corporation v. U.S. ENVIRONMENTAL PROTECTION AGENCY; MICHAEL S. REGAN, in his official capacity as Administrator of the U.S. Environmental Protection Agency; DEBORAH JORDAN, in her official capacity as Acting Regional Administrator for Region IX of the U.S. Environmental Protection Agency, Respondents, SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT; SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT, Intervenors.
No. 19-71223
United States Court of Appeals for the Ninth Circuit
August 26, 2021
Argued and Submitted July 7, 2020 Portland, Oregon
Mark J. Bennett and Eric D. Miller, Circuit Judges, and Benita Y. Pearson, District Judge. Opinion by Judge Miller
OPINION
On Petition for Review of an Order of the Environmental Protection Agency
Opinion by Judge Miller
SUMMARY**
Clean Air Act / Standing
The panel granted in part, and denied in part, a petition for review of a final rule of the Environmental Protection Agency (“EPA”) approving the State of California’s plan for meeting the air quality standard for ozone in the San Joaquin Valley, 84 Fed. Reg. 11,198 (Mar. 25, 2019).
The plan contained a single contingency measure that would be activated if the other provisions of the plan do not achieve reasonable further progress toward meeting the standard. An environmental organization petitioned for review, arguing that the contingency measure was inadequate.
AIR contended that the EPA’s approval of the contingency measure in the State’s plan reflected an unreasonable interpretation of the Clean Air Act and was arbitrary and capricious because the measure provided only a nominal emissions reduction of one ton per day. The panel agreed that the EPA’s approval was arbitrary and capricious. Under the Administrative Procedure Act, when an agency changes its policy, it must display awareness that it is changing position and show that there are good reasons for the new policy. In approving a contingency measure that provided a far lower emissions reduction, the EPA did not acknowledge that it had changed its understanding of what reasonable further progress meant. The panel rejected the EPA’s contention that its new position was a response to this court’s decision in Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016). The panel held that the EPA may not avoid the need for robust contingency measures by assuming that they will not be needed. Because the EPA did not provide a reasoned explanation for approving the State plan, the rule was arbitrary and capricious.
COUNSEL
Brent J. Newell (argued), Law Offices of Brent J. Newell, Petaluma, California; Andrew L. Packard and William N. Carlon, Law Offices of Andrew L. Packard, Petaluma, California; for Petitioner.
Alan D. Greenberg (argued), Attorney; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environmental Defense Section, Environment and Natural Resources Division, United States Department of Justice, Denver, Colorado; Jefferson Wehling, Office of the Regional Counsel, United States Environmental Protection Agency, San Francisco, California; Geoffrey L. Wilcox, Office of the General Counsel; United States Environmental Protection Agency, Washington, D.C.; for Respondents.
Jessica E. Hafer Fierro (argued) and Annette A. Ballatore-Williamson, San Joaquin Valley Unified Air Pollution Control District, Fresno, California; Barbara Baird and Mary J. Reichert, South Coast Air Quality Management District, Diamond Bar, California; for Intervenors.
MILLER, Circuit Judge:
The Environmental Protection Agency adopted a final rule approving the State of California’s plan for meeting the air quality standard for ozone in the San Joaquin Valley. 84 Fed. Reg. 11,198 (Mar. 25, 2019). The plan contains a single contingency measure that will be activated if the other provisions of the plan do not achieve reasonable further progress toward meeting the standard. Arguing that the contingency measure is inadequate, an environmental organization petitions for review. Because we agree that the agency’s approval of the plan was arbitrary and capricious, we grant the petition in part and remand.
I
A
The Clean Air Act establishes “a cooperative state-federal scheme for improving the nation’s air quality.” Vigil v. Leavitt, 381 F.3d 826, 830 (9th Cir. 2004). Under the Act, the EPA issues standards for atmospheric pollutants such as ozone.
The Act requires assessment of progress at triennial “milestones.”
Congress recognized that a State’s implementation plan might not succeed. Thus, plans covering nonattainment areas must “provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress” or fails to attain the relevant air quality standard.
B
The San Joaquin Valley is a large inland area of California extending from the Sacramento-San Joaquin Delta in the north to the Tehachapi Mountains in the south. The Valley has long struggled to attain air quality standards for ozone. In 2012, the EPA classified the Valley as an extreme nonattainment area for the 8-hour ozone standard. See
The San Joaquin Valley Air Pollution Control District is responsible for developing the state implementation plan for the Valley. 83 Fed. Reg. 44,528, 44,529 (Aug. 31, 2018). Another state agency, the California Air Resources Board, is responsible for submitting the state plan to the EPA for approval.
In late 2018, the State proposed updates to its plan for the Valley. The updates reflected a response to our decision in Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016), in which we held that contingency measures may not include measures that have already been implemented in a state plan. Id. at 1235–36; accord Sierra Club v. EPA, 985 F.3d 1055,
The EPA approved the revised plan. 84 Fed. Reg. at 11,198. The agency acknowledged that it had previously “recommended in guidance that contingency measures should provide emissions reductions approximately equivalent to one year’s worth of [reasonable further progress], which, with respect to ozone in the . . . Valley,” amounted to about 11.4 tons per day. Id. at 11,205. The agency estimated that the one contingency measure proposed by the State—the repeal of the small-container exemption for paint—would provide reductions of only one ton per day. Id. at 11,206. But the agency stated that it now “do[es] not believe that the contingency measures themselves must provide for one year’s worth of [reasonable further progress].”
II
The Association of Irritated Residents (AIR), a California nonprofit corporation with members who reside in the Valley, petitions for review of the EPA’s final rule approving the state plan. The San Joaquin Valley Air Pollution Control District and the South Coast Air Quality Management District have intervened in defense of the rule. Although the EPA does not question AIR’s standing, the intervening districts do, so we begin by considering their argument.
To establish Article III standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). AIR meets those requirements.
It is well established “that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972));
AIR’s members have established injury in fact by submitting declarations containing credible allegations of respiratory distress as well as harm to their recreational and aesthetic interests as a result of ozone pollution in the Valley. But the districts argue that those injuries are not caused by the EPA’s approval of the contingency measure in the State’s plan, and, correspondingly, that setting aside the plan’s approval would not redress the injuries. That is so, they say, because the contingency measure has not yet been activated, so its implementation is merely “hypothetical.”
We disagree. An injury is fairly traceable to a challenged action as long as the links in the proffered chain of causation “are ‘not hypothetical or tenuous’ and remain ‘plausib[le].’” Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (alteration in original) (quoting National Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2002)). Similarly, a plaintiff can meet the redressability requirement by showing that “it is likely, although not certain, that his injury can be redressed by a favorable decision.” Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir. 2010); accord Friends of the Earth, 528 U.S. at 181. Neither part of the test demands absolute certainty, and both are satisfied here.
The Valley has long been “an area with some of the worst air quality in the United States,” and it has repeatedly failed to meet air quality standards. Committee for a Better Arvin,
As the districts acknowledge, their arguments relate more to ripeness than to standing. The ripeness doctrine, which aims to avoid premature and potentially unnecessary adjudication, “is ‘drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.’” National Park Hosp. Ass’n v. Department of Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)). “The constitutional component of ripeness overlaps with the ‘injury in fact’ analysis for Article III standing,” and therefore “the inquiry is largely the same: whether the issues presented are ‘definite and concrete, not hypothetical or abstract.’” Wolfson, 616 F.3d at 1058 (quoting Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)). For the reasons we have already explained, constitutional ripeness is satisfied here.
To assess prudential ripeness, we must “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott
III
According to AIR, the EPA’s approval of the contingency measure in the State’s plan reflects an unreasonable interpretation of the Clean Air Act and is arbitrary and capricious because the measure will provide only a nominal emissions reduction of one ton per day. The EPA responds with the observation that the statute does not “specify the quantity of emission reductions that a contingency measure must provide,” and it argues that “there exists no binding requirement for the particular amount of emission reductions that EPA must require in a contingency measure.”
All parties agree that we must review the EPA’s interpretation of the Clean Air Act using the deferential
As the District of Columbia Circuit has observed, there is considerable overlap between a challenge at Chevron step two and an argument that an agency’s action is arbitrary and capricious: “Whether a statute is unreasonably interpreted is close analytically to the issue whether an agency’s actions under a statute are unreasonable.” General Instrument Corp. v. FCC, 213 F.3d 724, 732 (D.C. Cir. 2000); accord Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011); see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020). We think AIR’s challenge is most appropriately evaluated under the arbitrary-and-capricious framework, and we agree with AIR that even assuming that the EPA’s interpretation of the statute is permissible, its action cannot survive review.
Under the Administrative Procedure Act, “[w]hen an administrative agency sets policy, it must provide a reasoned explanation for its action.” Judulang, 565 U.S. at 45. Of
In the challenged rule, the EPA acknowledged the traditional relationship between contingency measures and the requirement of reasonable further progress: “The purpose of emissions reductions from implementation of contingency measures is to ensure that, in the event of a failure to meet a[] [reasonable further progress] milestone or a failure to attain the [air quality standards] by the applicable attainment date, the state will continue to make progress toward attainment at a rate similar to that specified under the [reasonable further progress] requirements.” 84 Fed. Reg. at 11,205. It also recognized that it had adopted a specific understanding of the necessary scale of contingency measures, having previously said “that contingency measures should provide emissions reductions approximately equivalent to one year’s worth of [reasonable further progress], which, with respect to ozone in the San Joaquin Valley nonattainment area,” is about 11.4 tons per day. Id.
In approving a contingency measure that provides a far lower emissions reduction—only one ton per day—the EPA did not say that it had changed its understanding of what reasonable further progress means. Instead, it said that “contingency measures themselves” do not need to “provide for one year’s worth of [reasonable further progress].”
The EPA described its new position as a response to our decision in Bahr, but it cannot be reconciled with our reasoning in that case. Under Bahr, contingency measures may not be measures that the State is already implementing in its plan. 836 F.3d at 1236. Our decision was based on the plain language of the statute, which reflects the commonsense idea that if currently existing measures are not successful in ensuring progress, then it is unreasonable to rely upon them as contingency measures.
The premise of the EPA’s rule appears to be that contingency measures will not be needed “because already-implemented measures (although not relied upon for the purpose[] of meeting the statutory contingency measure requirement) will also ensure sufficient continued progress in the event of a failure to achieve a[] [reasonable further progress] milestone.” 84 Fed. Reg. at 11,206. But the reason the statute requires contingency measures is to have a backup that can be put in place immediately in case already-implemented measures in a plan fail to achieve reasonable further progress. See Sierra Club, 985 F.3d at 1068; Bahr, 836 F.3d at 1235. The agency may not avoid the need for robust contingency measures by assuming that they will not be needed. Because the agency did not provide a reasoned explanation for approving the state plan, the rule is arbitrary and capricious.
IV
AIR also challenges the EPA’s approval of the State’s Enhanced Enforcement Activities Program. The scope of that challenge is narrow because the EPA recognized that the program “fails to include all of the characteristics necessary to provide for a stand-alone contingency measure” and therefore did not approve it as one. 84 Fed. Reg. at 11,204.
The Act generally charges the States with responsibility for meeting air quality standards, and it permits the adoption of emissions limitations.
Of course, once a State seeks to incorporate an additional emissions limitation into its plan, section
PETITION GRANTED in part and DENIED in part; REMANDED.