EL COMITÉ PARA EL BIENESTAR DE EARLIMART, an unincorporated association; Community & Children‘s Advocates Against Pesticide Poisoning, a California non-profit corporation Wishtoyo Foundation, a California non-profit corporation Ventura Coastkeeper, a California non-profit corporation Association of Irritated Residents, an unincorporated association, Plaintiffs-Appellees, and Air Coalition Team, Intervenor, v. Mary-Ann WARMERDAM, in her official capacity as Director Department of Pesticide Regulation; Linda Adams, in her official capacity as Secretary, CA Environmental Protection Agency; James Goldstene, in his official capacity as Executive Officer, CA Air Resources Board; Mary Nichols, in her official capacity as Chair, CA Air Resources Board; William Burke, in his official capacity as Member, CA Air Resources Board; CA Joseph Calhoun, in his official capacity as Member, CA Air Resources Board; Dorene D‘Adamo, in her official capacity as Member, CA Air Resources Board; Mark Desaulnier, in his official capacity as Member, CA Air Resources Board; C. Hugh Friedman, in his official capacity as Member, CA Air Resources Board; Matthew McKinnon, in his official capacity as Member, CA Air Resources Board; Barbara Patrick, in her official capacity as Member, CA Air Resources Board; Barbara Riordan, in her official capacity as Member, CA Air Resources Board; Ron Roberts, in his official capacity as Member, CA Air Resources Board; Robert F. Sawyer, Chair, CA Air Resources Board; William F. Friedman, in his official capacity as Member, CA Air Resources Board, Defendants-Appellants. El Comité Para el Bienestar de Earlimart, an unincorporated association; Community & Children‘s Advocates Against Pesticide Poisoning, a California non-profit corporation Wishtoyo Foundation, a California non-profit corporation Ventura Coastkeeper, a California non-profit corporation Association of Irritated Residents, an unincorporated association, Plaintiffs-Appellees, Air Coalition Team, Intervenor-Appellant, v. Mary-Ann Warmerdam, in her official capacity as Director Department of Pesticide Regulation; Linda Adams, in her official capacity as Secretary, CA Environmental Protection Agency; James Goldstene, in his official capacity as Executive Officer, Air Resources Board; Mary Nichols, in her official capacity as Chair, CA Air Resources Board; William Burke, in his official capacity as Member, CA Air Resources Board; Joseph Calhoun, in his official capacity as Member, CA Air Resources Board; Dorene D‘Adamo, in her official capacity as Member, CA Air Resources Board; Mark Desaulnier, in his official capacity as Member, CA Air Resources Board; C. Hugh Friedman, in his official capacity as Member, CA Air Resources Board; Matthew McKinnon, in his official capacity as Member, CA Air Resources Board; Barbara Patrick, in her official capacity as Member, CA Air Resources Board; Barbara Riordan, in her official capacity as Member, CA Air Resources Board; Ron Roberts, in his official capacity as Member, CA Air Resources Board, Defendants, William F. Friedman, in his official capacity as Member, Air Resources Board, Defendant, and Robert F. Sawyer, Chair, CA Air Resources Board, Defendant-Appellant.
Nos. 06-16000, 06-16131
United States Court of Appeals, Ninth Circuit
Argued and Submitted May 12, 2008. Filed August 20, 2008.
539 F.3d 1062
Jan L. Kahn and Rissa A. Stuart, Hanford, CA, for appellant-intervenors.
Brent Newell and Luke W. Cole, Center for Race, Poverty & the Environment, San Francisco, CA, for the plaintiffs-appellees.
Before: DIARMUID F. O‘SCANNLAIN, HAWKINS, and M. MARGARET McKEOWN, Circuit Judges.
OPINION
McKEOWN, Circuit Judge:
This case involves a challenge under
I. FACTUAL AND PROCEDURAL BACKGROUND
A. THE SIP PROCESS UNDER THE CLEAN AIR ACT
To protect public health and welfare, the CAA requires the EPA to establish National Ambient Air Quality Standards (“NAAQS“) for certain air pollutants.
Each state is required to designate the areas within its boundaries where the air quality meets the NAAQS (“attainment areas“), and those where the air quality fails to meet the NAAQS (“nonattainment areas“) for each pollutant targeted for emissions reductions.
B. CALIFORNIA‘S 1994 SIP PROCESS AND EPA REVIEW AND APPROVAL
Under threat of an EPA takeover of the state‘s air quality planning, the California Air Resources Board (“CARB“), the state agency responsible for preparing and submitting a SIP for EPA approval, submitted the 1994 SIP. See
The Pesticide Element set a “goal” of reducing, by 2005, pesticide-related emissions from the 1990 baseline by a “maximum of 20 percent,” and provided that “a decision whether additional regulatory measures to ensure that reductions in pesticidal VOC emissions are achieved will be made by 1997” (emphasis added). A timeline at the end of the Pesticide Element states that the decision on regulations will be made by November 1997, with the implementation of the plan to occur by December 1998. The plan‘s summary also states that by December 1998, “[i]mplementation of additional regulatory measures, if necessary, will take place to ensure that targeted pesticidal VOC reductions occur” (emphasis added).
After California submitted the Pesticide Element, considerable discussion took place through correspondence between David Howekamp, Director of EPA Region IX Air Division, and DPR Director James Wells. Howekamp expressed concern that the proposed SIP was not complete enough for EPA review. Specifically, EPA was concerned that the SIP lacked specific emission reduction goals specified by date and nonattainment area, and that the SIP did not propose a firm deadline by which California committed to deciding whether to adopt new emissions regulations for several nonattainment areas. To fill these gaps, Howekamp proposed that California “explicitly” commit to a decision deadline of June 15, 1997, and suggested emission reduction goals by nonattainment area.
California capitulated to EPA‘s requests in a May 11, 1995, letter from James Boyd, then executive officer for CARB, to the EPA, stating that he was “transmit[ting] a clarification” of the Pesticide Element of the 1994 SIP, and noting that the “enclosed letter from DPR clarifies that in the SIP, California has committed to adopt and submit to U.S. EPA by June 15, 1997, any regulations necessary to achieve the emission reductions from pesticides specified in the letter.” Letter from Boyd to EPA, May 11, 1995 (emphasis added). The enclosed “letter” was a May 9, 1995, memorandum from Wells to Boyd (“the Wells Memorandum“). The Wells Memorandum stated the same commitment referenced in Boyd‘s cover letter and included a table outlining interim reduction goals for each nonattainment area.
When the EPA issued its Notice of Proposed Rulemaking, the summary of the Proposed Rules identified the Wells Memorandum as a “clarification” of the “technical details of the pesticide commitment” and stated that the “clarification is considered part of California‘s SIP.” Approval and Promulgation of Implementation Plans; California—Ozone, 61 Fed.Reg. 10920, 10935 (March 18, 1996) (to be codified at 40 C.F.R. pt. 52) (“Proposed Rules“). Following the close of the public comment period, but before the Final Rule issued, CARB sent a letter dated June 13, 1996 to Howekamp (“Howekamp letter“) seeking to clarify and correct various aspects of the SIP, in particular, to delete the table from the Wells letter labeled “Reductions from 1990 Pesticide Emissions Baselines.” This deletion effectively erased any record indicating the interim target reductions for the nonattainment areas. Following this modification, the EPA approved the 1994 SIP on January 8, 1997. See Approval and Promulgation of Implementation Plans; California—Ozone, 62 Fed.Reg. 1150, 1186-87;
In February, four months before the June 15, 1997, deadline for deciding whether to adopt regulations, a DPR scientist called into question CARB‘s methodology — “back-casting,” or extrapolating backwards
By the time the June 15 deadline arrived, California had decided it was unnecessary to adopt additional regulations. This decision is documented in a February 1998 letter from Wells in response to a Notice of Intent to Sue under the Clean Air Act sent by the Environmental Defense Center. Wells‘s letter states that
[o]ur April 1997 analysis of data through 1995 showed that all nonattainment areas (NAAs) were meeting annual interim goals, and that four out of five were already meeting the final 2005 year goals . . . . Therefore, we determined in April 1997 that no regulations were necessary to reduce VOC emissions by specific percentages. Consequently, no regulations were adopted and submitted to U.S. EPA in June 1997.
C. THE CITIZEN SUIT AND DISTRICT COURT ORDERS
El Comité filed a citizen suit under
The district court issued an order granting El Comité‘s summary judgment motion on the first count (holding that California failed to adopt regulations in 1997), and granting California‘s motion on the second count (holding that the court did not have jurisdiction over the claim that California violated the SIP by use of the wrong methodology to calculate the baseline data), and denying the parties’ motions in all other respects. El Comité Para el Bienestar de Earlimart v. Helliker, 416 F.Supp.2d 912, 934 (E.D.Cal.2006). The district court judge, somewhat prescient about the issues before us on appeal, found himself “bemused by the result,” but nonetheless stated, “the result, while ironic, is not inconsistent.” Id. at 916 n. 5.
The court issued a second order on remedies (“Remedies Order“) providing injunctive and declaratory relief to El Comité. The Remedies Order requires California to “propose, adopt, and submit to EPA for approval and implement regulations no later than January 1, 2008, to achieve the emission reduction goals as set forth in the May 9, 1995, memorandum from James Wells to James Boyd,” and to file a status report as to its progress.
The Remedies Order also declared that the defendants “are in violation” of the CAA and the 1994 SIP by “failing to utilize the 1990 PUR data as set forth in the 1994 SIP and by failing to adopt ‘enforceable control measures‘” as required by the CAA. In reaching this conclusion, the district court reiterated its earlier conclusion that a SIP must have enforceable standards to be valid, and while the court had not explicitly held that California failed to comply with the SIP by virtue of the failure to adopt and implement regulations,
II. ANALYSIS
Despite a complicated factual background, the dispute here is not factual, but rather, is a matter of regulatory interpretation and administrative law principles. Our review is de novo. See Arakaki v. Haw., 314 F.3d 1091, 1094 (9th Cir.2002). To determine whether California violated the SIP, and whether the remedies imposed by the district court are appropriate, we first address the scope of the Final SIP. On this issue, the parties hotly contest the significance of the Wells Memorandum, the Howekamp letter, and a declaration by Howekamp prepared for this litigation.2
El Comité argues that we cannot consider the revisions to the SIP contained in the Howekamp letter because they were submitted by California to the EPA after the public comment period had closed, and since no other revision rescinded the Wells Memorandum, that memorandum and the Howekamp declaration reflect EPA‘s understanding of California‘s commitments under the SIP, i.e., its administrative intent in approving the SIP. California argues that the Final SIP excludes the Wells Memorandum, and under principles of administrative law, we are precluded from considering administrative intent because the regulation is unambiguous. California also questions the validity of Howekamp‘s declaration, which it describes as an ”ex post facto declaration” by a “private citizen.”
Because we conclude that the schedule and interim standards of the Wells Memorandum are not part of the SIP, California would not have been in violation of the SIP even if it had made no decision about the need for further regulations. And significantly, any such decision would have been discretionary by the language of the SIP (“a decision whether additional regulatory measures to ensure that reductions in pesticidal VOC emissions are achieved will be made by 1997” (emphasis added)). Nonetheless, El Comité argues that by using the 1990 data rather than the 1991 back-cast data, California violated the SIP by failing to adopt “enforceable control measures.” The district court held — and we agree — that the baseline methodology is not “an emission standard or limitation” that falls within the district court‘s jurisdiction under
A. THE SCOPE OF THE SIP
The parties frame the key issue as a debate over whether the Wells Memorandum is included in the Final SIP. The heart of El Comité‘s case is cut out if the memorandum is not part of the Final SIP. On the other hand, if the memorandum, with its detailed interim requirements and
California‘s arguments on this point are persuasive. It argues that the district court erred in its analysis by ignoring
1. The Preamble
Regarding the first source, the preamble language should not be considered unless the regulation itself is ambiguous. See Wards Cove Packing Corp. v. Nat‘l Marine Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir.2002) (“[T]he plain meaning of a regulation governs and deference to an agency‘s interpretation of its regulation is warranted only when the regulation‘s language is ambiguous.” (citing Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000))). The D.C. Circuit took a similar approach in Wyoming Outdoor Council v. United States Forest Service, 165 F.3d 43, 53 (D.C.Cir.1999), explaining that “in the analogous context of statutory construction. . . the language in the preamble of a statute is ‘not an operative part of the statute. . . .‘” That is, unlike the statute‘s operative part, the preamble does not “prescribe rights and duties and otherwise declare the legislative will,” nor does it “enlarge or confer powers on administrative agencies or officers,” but it nevertheless “may aid in achieving a general understanding of the statute.” Id. (internal quotation marks omitted). By analogy, the “principles governing interpretation of the preamble of a regulation are no different” than those governing statutory interpretation, and thus, “[w]here the enacting or operative parts of a statute are unambiguous, the meaning of the statute cannot be controlled by the language in the preamble.” Id.
El Comité also misapplies the proposition in Safe Air that a court interprets a SIP based on its “plain meaning when such a meaning is apparent, not absurd, and not contradicted by the manifest intent of EPA, as expressed in the promulgating documents available to the public.” 475 F.3d at 1108 (emphasis added). Invoking Safe Air, El Comité looks past the plain meaning of the Final Rule, which excludes the Wells Memorandum and any reference to it, and focuses instead on the proposed rule‘s incorporation of the Wells Memorandum as proof of EPA‘s administrative intent.
El Comité‘s reliance on the non-final rule ignores the bedrock principle that we look to the plain meaning of the final rule as promulgated. See Bayview, 366 F.3d at 698 (“A regulation should be construed to give effect to the natural and plain meaning of its words“) (citation omitted). As part of the rule making process, on June 13, 1996, California wrote to Howekamp at EPA, providing information and corrections to the SIP. The letter requested that EPA excise the interim goals table in the Wells Memorandum. The Final SIP lists the June 1996 letter but does not reference the Wells Memorandum other than in the preamble‘s summary, and there the table is excised according to the instructions in the Howekamp letter. Thus the Howekamp letter became the final word in the saga of the SIP.
The difficulty with the Howekamp letter, El Comité suggests, is that it was submitted over a month after the public comment period had closed and thus cannot be part of the SIP because EPA‘s administrative intent to modify the 1994 SIP was not made available for public consideration and comment. See Safe Air, 475 F.3d at 1105-06 (“[T]he notice requirements of the APA, [require] that some indication of the regulatory intent that overcomes plain language must be referenced in the published notices that accompanied the rulemaking process. Otherwise, interested parties would not have the meaningful opportunity to comment on proposed regulations that the APA contemplates, because they would have had no way of knowing what was actually proposed” (citations omitted).).
El Comité‘s argument takes us in a direction we cannot follow because it implicates a question over which we lack jurisdiction: whether, in revising the SIP along the lines requested by California and allowing a modification of the SIP after the close of the public comment period, the EPA violated the Administrative Procedure Act. See generally Ober v. EPA, 84 F.3d 304, 313 (9th Cir.1996) (“An agency may use supplementary data, unavailable during the notice and comment period, that expands on and confirms information contained in the proposed rulemaking and addresses alleged deficiencies in the pre-existing data, so long as no prejudice is shown” (quoting Idaho Farm Bureau Fed‘n v. Babbitt, 58 F.3d 1392, 1402 (9th Cir.1995)) (emphasis added).). That question is the quintessential administrative challenge under a petition to review a final decision of the EPA (see
2. The Howekamp Declaration
As part of its analysis of intent and whether the Wells Memorandum was incorporated into the final SIP, the district court looked to Howekamp‘s Declaration. Significantly, this declaration was offered not by an EPA representative but by a former employee some years after the fact. We need not consider the exact scope and admissibility of such intent evidence because, in any event, it cannot override the plain language of the regulation or EPA‘s contemporaneous statements published in the Federal Register.
In sum, we conclude that the district court erred in holding that the Wells Memorandum was incorporated into the SIP.
B. THE BACK-CAST METHODOLOGY ESTABLISHING THE BASELINE INVENTORY IS NOT AN EMISSION STANDARD OR LIMITATION
In the district court, El Comité challenged California‘s use of the 1990 data instead of the 1991 back-cast data. California‘s use of the improper methodology, El Comité argued, made it impossible for the state to assess whether new regulations were needed, thereby rendering unenforceable the commitment to adopt regulations, if necessary, by June 15, 1997, and making the entire SIP invalid under the CAA. After analyzing the nature of the baseline inventory, the district court granted summary judgment in favor of California: “[El Comité‘s] second claim fails because a ‘baseline inventory’ is not an ‘emission standard or limitation’ subject to challenge under the Clean Air Act.” El Comité, 416 F.Supp.2d at 927. The district court found that the baseline inventory is not an emission standard or limitation under the statute because it does not “limit[] the quantity, rate, or concentration of emissions of air pollutants on a continuous basis,” and does not “relat[e] to the operation or maintenance of a source to assure continuous emission reduction.”
Although El Comité did not appeal this issue, its arguments nonetheless implicitly
C. THE DISTRICT COURT LACKED JURISDICTION TO ISSUE A REMEDIES ORDER
The district court declared that California violated the CAA and the California SIP by “failing to adopt ‘enforceable control measures’ as required by the [CAA].” Remedies Order at 2; see also Remedies Order at 3 n. 2 (“[B]y virtue of their failure to use the correct PUR data, defendants consequently were unable to adopt proper ‘enforceable control measures,’ as they must, under the Clean Air Act.“). Because neither the Wells Memorandum nor the baseline data provide an enforceable emission standard or limitation, no relief is available to El Comité under
We reverse the summary judgment in favor of El Comité, vacate the Remedies Order, and remand with orders to dismiss the case for lack of jurisdiction.
REVERSED AND REMANDED.
Notes
EPA is approving revisions to the California State Implementation Plan (SIP) for ozone for 6 nonattainment areas. . . . In addition, EPA is approving specific local and statewide air pollution control measures. . . . The California Air Resources Board (CARB) submitted these SIP revisions to EPA on November 14, 1994, November 15, 1994, December 28, 1994, December 29, 1994, February 7, 1995, March 30, 1995, January 22, 1996, April 4, 1996, May 17, 1996, June 13, 1996 (Howekamp Letter), July 10, 1996, and July 12, 1996.
EPA is approving these revisions to the California SIP under provisions of the Clean Air Act (CAA) regarding EPA action on SIP submittals for nonattainment areas.
62 Fed.Reg. at 1150. Notably absent from this list of approved SIP revisions is