ASSOCIATION OF IRRITATED RESIDENTS, an unincorporated association; EL COMITÉ PARA EL BIENESTAR DE EARLIMART, an unincorporated association; COMMUNITY & CHILDREN’S ADVOCATES AGAINST PESTICIDE POISONING, an unincorporated association, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LISA JACKSON, in her official capacity as Administrator of the U.S. EPA; LAURA YOSHII, in her official capacity as Regional Administrator of Region IX of the U.S. EPA, Respondents. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
No. 09-71383 | No. 09-71404
United States Court of Appeals, Ninth Circuit
February 2, 2011
Amended January 27, 2012
753
Sidney R. Thomas and N. Randy Smith, Circuit Judges, and Robert S. Lasnik, Chief District Judge.
On Petition for Review of an Order of the Environmental Protection Agency. Argued and Submitted November 1, 2010—San Francisco, California. EPA No. EPA-R09-OAR-2008-0677.
*Following the untimely death of Judge Cynthia Hall, the Honorable N. R. Smith was drawn to replace her on the panel. The Honorable Robert S. Lasnik, Chief United States District Judge for the Western District of Washington, is sitting by designation.
Brent J. Newell and Marybelle N. Nzegwu, San Francisco, California, and David Pettit, Melissa Lin Perrella, and Adriano Martinez, Santa Monica, California, for the petitioners.
Austin D. Saylor, United States Department of Justice, for the respondent.
THOMAS, Circuit Judge:
The Association of Irritated Residents, El Comité para el Bienestar de Earlimart, the Community of Children’s Advocates Against Pesticide Poisoning, and the Natural Resources Defense Council, petition for review of a final action by the Environmental Protection Agency approving in part and disapproving in part revisions to California’s State Implementation Plan for meeting air quality standards for ozone under the Clean Air Act. We have jurisdiction under
I
A
Congress enacted the Clean Air Act (the “Act“) to help protect and enhance the nation’s air quality.
Under the Act, states have primary responsibility for ensuring that the quality of their air satisfies the NAAQS, and they must detail their efforts in a State Implementation Plan (“SIP“) for each region within that state.
An EPA determination that a state has failed to submit a required plan, or EPA disapproval of a submitted plan, triggers two time periods. First, a “sanctions clock” begins during which time the state must either remedy the deficiency or face sanсtions.
The Act also contains “conformity” requirements. Under these conformity provisions, the federal government may not approve, accept, or fund any transportation plan, program, or project unless it conforms to an approved SIP.
In addition to the SIPs and conformity requirements applicable to all areas, the Act contains further requirements for nonattainment areas, depending on the severity of the ozone problem in the area.
The second requirement for these nonattainment areas is to develop enforceable transportation strategies and control measures “to offset any growth in emissions from growth in vehicle miles traveled . . . and tо attain reduction in motor vehicle emissions as necessary.”
B
In 1994, California submitted a SIP revision that included an ozone attainment demonstration for the South Coast nonattainment area and a “Pesticide Element” designed to reduce emissions from pesticide applications. In 1997, EPA approved the SIP revision with respect to both the ozone attainment demonstration and the Pesticide Element. In 1999, California sought again to update the SIP with new emissions inventories and a new ozone attainment demonstration. EPA
After EPA approved the 1997/1999 SIP, California conducted new modeling, demonstrating that the existing SIP underestimated vehicle pollution in the area. Specifically, California realized that, with respect to ozone:
[T]he basic strategy of the 1997 Plan and the 1999 amendments must be significantly overhauled to address the new realities of higher mobile source emissions and lower carrying capacities for ozone as indicated by new modeling and meteorological episodes. Additional reductions, above and beyond those committed to in the 1997 Plan and 1999 amendments, will be necessary to demonstrate attainment with the federal ozone standard and present a significant challenge.
Concluding that “a plan update [was] necessary,” California submitted the 2003 SIP Revision to EPA in 2004. The 2003 SIP Revision consisted, in relevant part, of three things: the 2003 Attainment Plan, PEST-1, and a demonstration that no transportation control measures were required. Petitioners seek review of EPA’s final determination as to each of these three elements.
The 2003 Attainment Plan revised the existing SIP in two ways. First, it updated the attainment demonstration (and therefore the MVEBs) to account for the increased emissions projections under the new mоdeling. Second, it added additional control measures to offset the increase in predicted pollution. In 2004, EPA found the MVEBs in the attainment demonstration adequate for purposes of the conformity provisions, but did not make a final decision as to the 2003 Attainment Plan as a whole. In 2008, California withdrew some of
PEST-1 was a control strategy that called for continued implementation of the Pesticide Element approved in the 1997/1999 SIP. In 2008, we concluded that the portion of the Pesticide Element representing the enforceable commitment (the Wells Memorandum), was not part of the 1997/1999 SIP. See El Comité para el Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062 (9th Cir. 2008).
Finally, becausе nonattainment areas must propose enforceable transportation control measures “to offset any growth in emissions from growth in vehicle miles traveled,” California submitted to EPA a demonstration purporting to show that there would be no such growth in emissions. Although California acknowledged that vehicle miles traveled would increase by about 30%, it showed that aggregate motor vehicle emissions would decrease.
In 2008, EPA proposed to approve the control measures that were not withdrawn from the 2003 Attainment Plan (including PEST-1), but disapprove the attainment demonstration (and therefore the MVEBs) in the 2003 Attainment Plan because the demonstration was largely based on thе withdrawn commitments. EPA explained the consequences of its proposed partial disapproval by saying: “No sanctions clocks or FIP requirement would be triggered by our disapprovals, if finalized, because the approved [1997/1999] SIP already contains the plan elements that we are proposing to disapprove.” 73 Fed. Reg. 63,408, 63,419 (Oct. 24, 2008) (to be codified at 40 C.F.R. pt. 52). EPA also proposed to approve California’s assertion that no transportation control measures were required based on California’s demonstration that there would be no growth in aggregate vehicle emissions.
In 2009, after considering public comments from petitioners on the propоsed rule, EPA finalized action on the 2003
Petitioners raise three issues in their petition for review. First, they contend EPA’s failure to order California to submit a revised attainment plan for the South Coast after it disapproved the 2003 Attainment Plan was arbitrary and capricious. Second, petitioners contend EPA’s approval of PEST-1 violates the Clean Air Act because PEST-1 lacks enforceable commitments. Third, petitioners contend EPA violated the Act by failing to require transportation control measures to combat the increase in vehicle miles traveled. We grant the petition as to all three claims.
II
[1] EPA’s failure to evaluate the adequacy of the existing SIP was arbitrary and capricious. The Act requires each nonattainment area to submit a SIP that includes an attainment demonstration for the 1-hour ozone standard.
[3] Through the 2003 SIP Revision, EPA knew, or should have known, of the inadequacy of the 1997/1999 SIP. As California specifically stated, “this revision points to the urgent need for additional emission reductions (beyond those incorporated in the 1997/99 Plan) to offset increased emission estimates from mobile sources and meet all federal criteria pollutant standards within the time frames allowed under the federal Clean Air Act.” EPA’s public comments also indicate that it understood that the new modeling undermined the existing SIP. See, e.g., 73 Fed. Reg. 63,408, 63,415 (Oct. 24, 2008) (to be codified at 40 C.F.R. pt. 52) (“[I]n view of the magnitude of the reductions now understood to be needed for attainment of the 1-hour ozone NAAQS in the South Coast, [California] has adopted [additional control measures].“); id. at 63,416 (“[California] revised the 1-hour ozone attainment demonstration in the 2003 South Coast [Air Quality Management Plan (AQMP)] in light of updated emissions inventories that show higher mobile source emissions than prior projections and updated modeling that indicates a lower carrying capacity in the air basin.“). However, even if EPA did not actually know the extent to which the new modeling undermined the existing SIP, it has a duty to evaluate the adequacy of the existing SIP as a whole when approving SIP revisions. See Hall v. U.S. EPA, 273 F.3d 1146, 1159 (9th Cir. 2001) (“The EPA must be able to determine that, with the revisions in place, the whole “рlan as . . . revised” can meet the Act’s attainment requirements.” (quoting Train v. Natural Res. Def. Council, 421 U.S. 60, 90 (1975))). In partially approving the 2003 Plan, EPA should have analyzed the adequacy of the whole 1997/1999 SIP.
EPA argues that thе FIP clock is triggered only where the plan revision is “required” under the Act. The first step in statutory construction cases is to begin with the language of the statute. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002). The plain text refutes EPA’s argument. Section
The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator—
(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section, or
(B) disapproves a State implementation plan submission in whole or in part,
unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federаl implementation plan.
[5] EPA contends that reading subsection (B) as requiring EPA to issue a FIP whenever it disapproves a discretionary revision would “yield absurd results, because it would require the agency to promulgate a FIP where the State’s fully approved SIP remains in effect.” EPA provides as an example a state proposing a revision to make an existing SIP less stringent, arguing that requiring a FIP when EPA disapproves such a relaxing of the SIP would be irrational. EPA’s point is well taken in a situation where the existing SIP remains adequate to attain the NAAQS. The facts in this case, however, are much different because EPA knew, or should have known, that the “fully approved SIP” was no longer adequate. While it may seem counterintuitive to require EPA to promulgate a FIP when it disapproves a revision seeking to undercut an effective existing SIP, it is entirely logical to require EPA to promulgate a FIP when it disapproves a revision seeking to update what it recognizes are serious deficiencies in an existing SIP.
[6] Furthermore, although the plain language requires a FIP every time EPA disapproves a plan revision, the FIP can be avoided if an existing plan is in place that meets the Act’s requirements because
This analysis aligns with Congress’s intent in writing the statutory language to mandate promulgation of a FIP upon any disapproval. In 1988, when Congress was debating the amendments to the Clean Air Act, EPA sought an amendment that would have left promulgation of FIPs solely to EPA’s discretion. See Coal. for Clean Air v. S. Cal. Edison Co., 971 F.2d 219, 223 (9th Cir. 1992) (citing S. 1630, 101st Cong. § 105 (1989)). Although the Senate passed such an amendment, a House Committee deleted the language, and the “House language retaining EPA’s mandatory obligation to promulgate a FIP whenever it disapproves a SIP was ultimately enacted by Congress and signed into law.” Id. (citing Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399).
Even if, as EPA argues, the FIP requirement is triggered only when the revision was “required” under the Act—and not upon every EPA disapproval of a plan revision as we determined above—the partial disapрroval of the 2003 SIP Revision here still triggers the FIP requirement because large portions of the 2003 Attainment Plan were not discretionary. For example, the Act explicitly requires states with nonattainment areas to update their SIPs every three years with a revised inventory of actual emissions from all sources of relevant pollutants. See
The California Clean Air Act requires a nonattainment area to update its AQMP triennially to incorporate the most recent available technical information.2 In addition, U.S. EPA requires that transportation conformity budgets be established based on the most recent planning assumptions (i.e., within the last 5 years). Both the 1997 SIP and the 1999 amendments were based on demographic forecasts of the mid-1990’s using 1993 as the base year. Since then, updated demographic data has become available, new air quality episodes have been identified, and the science for estimating motor vehicle emissions and air quality modeling techniques for ozone and PM10 have improved. Therefore, a plan update is necessary to ensure continued progress toward attainment and to avoid a transportation conformity lapse and associated federal funding losses.
[7] In summary, EPA’s duty to issue a FIP represents one statutory source of EPA’s duty to take further action upon partial disapproval of California’s 2003 Attainment Plan.
[8] Alternatively, EPA’s obligation to take further action can be derived from the statutory requirement that the Administrator issue a SIP call upon a finding that the existing SIP is substantially inadequate.
[9] EPA also notes thаt a demonstration that the 1997/1999 SIP is outdated or ineffective is not equivalent to finding that the SIP as a whole is substantially inadequate because a SIP
[10] Because EPA’s failure to evaluate the adequacy of the existing SIP was arbitrary and capricious in light of the 2003 SIP Revisions alerting EPA to the new modeling, we grant the petition for review. Specifically, EPA has an affirmative duty to ensure that Califоrnia demonstrate attainment with the NAAQS, see
III
EPA’s action in approving the pesticide element of the SIP was arbitrary and capricious. EPA approved PEST-1—the portion of the 2003 SIP Revision re-committing to implementing the Pesticide Elements from the 1997/1999 Plan—in its 2009 final action. Petitioners claim our decision in Warmerdam, 539 F.3d at 1072, in which we stated the Wells Memorandum was not part of the existing SIP, rendered the Pesticide Element’s commitments discretionary, thereby violating the Act. See
EPA does not address the merits of this contention. It only argues that petitioners lack standing to challenge the Pesticide Element. Specifically, EPA argues that petitioners’ injuries were not caused by EPA’s 2009 rulemaking and cannot be redressed by the relief they seek. We disagree.
EPA also claims it had a “false choice” because its approval of PEST-1 did not make the Pesticide Element any more or less enforceable. This contention is not entirely true. Although EPA approved an identical plan in the 1997/1999 SIP, it wasn’t until our 2008 Warmerdam decision that EPA approved the plan with the knowledge that the plan may not include enforceable commitments. As first submitted in 1994, EPA worried the Pesticide Element did not meet the requirements of the Act, primarily because it failed to include specific dates for adoption and implementation of the regulations necessary to achieve the required reductions. See Warmerdam, 539 F.3d at 1067. EPA did not propose approval of the Pesticide Element until California submitted the Wells Memorandum, which committed to adopting any necessary regulations by specific years and in specific areas. Id. In proposing approval of the Pesticide Element, EPA responded tо questions about the Pesticide Element’s enforceability by citing to the Wells Memorandum, thereby indicating its belief that the Wells Memorandum provided the required enforceable commitments. See, e.g., 62 Fed. Reg. 1150, 1169-70 (Jan. 8, 1997) (to be codified at 40 C.F.R. pt. 52). After Warmerdam, EPA
[12] EPA further argues petitioners cannot demonstrate redressability because if it disapproves PEST-1 on remand, the existing Pesticide Element as approved in 1997 would remain in effect. As we determined above, however, any disapproval of a SIP revision triggers the FIP and sanction clocks unless EPA determines the existing Pesticide Element has sufficiently enforceable commitments to meet the Act’s requirements. See
IV
[13] EPA’s failure to require transportation control measures was arbitrary and capricious. Petitioners contend EPA violated the Act when it partially approved the 2003 SIP Revision without requiring California to submit transportation control measures to offset the emissions resulting from an increase in vehicle miles traveled. EPA argues that because aggregate motor vehicle emissions will decrease each year, California did not need to adopt control measures. The disagreement centers on one sentence in the Act requiring transportation control measures “to offset any growth in emissions from growth in vehicle miles traveled.”
Within 2 years after November 15, 1990, the State shall submit a revision that identifies and adopts specific enforceable transportation control strategies and transportation control measures [“TCMs“] to offset any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area [“VMT“] and to attain reduction in motor vehi-
To interpret
[14] We begin with the plain words of the statute. The use of the word “growth” in reference to both “emissions” and “vehicle miles traveled” suggests two baselines: one pegged to changes in emissions and the other pegged tо changes in VMT. EPA argues that petitioners’ interpretation reads the phrase “growth in emissions” out of the statute because the Act would then only require a simplistic analysis of whether VMT is increasing. Although EPA is correct in stating that any increase in VMT is very likely to result in an increase in aggregate emissions, we cannot ignore the possibility that with advances in clean car technology, one day VMT could increase without a corresponding increase in emissions. If that happens, under the statute, EPA would not need to impose TCMs even though VMT increased. Therefore, although some increase in emissions is required (such that there are two baselines), it doesn’t change the ultimate quеstion of whether the baseline for the increase in emissions can be viewed in terms of aggregate vehicle emissions (as EPA contends), or if the baseline must be viewed as any increase in emissions due solely to VMT.
[15] EPA’s interpretation only gives effect to the second clause of the relevant sentence, and not to the first. According to the statute, states shall implement TCMs not only “to offset any growth in emissions from growth in [VMT]” but also “to attain reduction in motor vehicle emissions as necessary . . . to comply with the. . . periodic emissions reduction requirements[ ].”
We conclude that under the plain text of
[16] Further review of the legislative history provides additional support for our conclusion. See, e.g., S. REP. NO.
V
In summary, EPA’s approval of the 2003 SIP Revision was arbitrary and capricious. EPA should have ordered California to submit a revised attainment plan for the South Coast after it disapproved the 2003 Attainment Plan. EPA should have required transportation control measures. EPA is required to determine whether the Pesticide Element has sufficient enforсement mechanisms to satisfy the requirements of the Act. We grant the petition for review and remand to the EPA for further proceedings consistent with this opinion.
PETITION GRANTED.