SAFE AIR FOR EVERYONE; American Lung Association of Idaho; Noel Sturgeon, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Stephen L. Johnson, Administrator of the United States Environmental Protection Agency; Elin D. Miller,* Regional Administrator of the United States Environmental Protection Agency, Region X, Respondents, State of Idaho, Intervenor.
No. 05-75269.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 15, 2006. Filed Jan. 30, 2007.
475 F.3d 1096
Before: ARTHUR L. ALARCÓN, PAMELA ANN RYMER, and MARSHA S. BERZON, Circuit Judges.
* Elin D. Miller is substituted for her predecessor as Regional Administrator of the United States Environmental Protection Agency. Fed. R.App. P. 43(c)(2).
Paul Cirino, Environmental Defense Section, U.S. Department of Justice, Washington, D.C., for the respondents.
Lisa J. Kronberg, Deputy Attorney General, Idaho Department of Environmental Quality, Boise, ID, for the intervenor.
BERZON, Circuit Judge:
The Clean Air Act (“CAA” or “the Act“),
In this case, we are presented with a preexisting SIP containing language that prohibits open burning generally and contains no exception allowing farmers to burn the residue left in their fields after harvesting them crops. Petitioner, Safe Air for Everyone (“SAFE“), challenges EPA‘s deсision to approve an amendment to that SIP authorizing such burning. SAFE argues that certain CAA provisions which prohibit amending SIPs so that they interfere with meeting air quality standards forbid EPA‘s action, at least absent further analysis of field burning‘s impact on Idaho‘s air quality; EPA maintains that its approval of the amendment does not contravene any CAA provisions.
We hold that as it presently stands, EPA‘s approval is legally unsustainable. EPA grounded its approval of this amendment on the premise that the preexisting Idaho SIP did not ban field burning, so that the amendment only clarified what was already the case. This view of the preexisting SIP is one with which we cannot agree. Because our review of an administrative agency‘s decision begins and ends with the reasoning that the agency relied upon in making that decision, see SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1103-04 (9th Cir. 2006), we grant the petition for review and remand for EPA‘s reconsideration of SAFE‘S objections under a correct understanding of the preexisting Idaho SIP.
The current treatment of field burning in the Idaho SIP came about as the result of a thirty-five-year regulatory evolution. After reviewing the factual administrative record, we first explain the regulatory process established by the CAA and then trace the development of the current SIP provisions related to field burning in Idaho. We then closely examine how the preexisting Idaho SIP treated field burning prior to 2005, when EPA approved an amendment to the SIP that explicitly authorized the practice. Finally, we explain why our interpretation of the SIP as it existed at the time of the 2005 amendment resolves this case and requires that we grant the petition for review and remand for further proceedings.
I.
A.
Open burning of agricultural fields is a common practice in Idaho, particularly among bluegrass farmers in the northern portion of the state. Those farmers maintain that burning the grass residue improves the productivity of their fields and has certain environmental benefits, views with which the Idaho legislature has expressed agreement. See
Despite these attested benefits, the administrative record establishes that such field burning is also a source of particulate matter that contributes to air pollution. SAFE submitted evidence indicating that the burning of agricultural fields in Idaho creates significant air quality problems. That evidence documents: (1) that clouds of smoke cover large portions of rural Idaho and surrounding states during burning season; (2) that area doctors believe that this smoke has had particularly severe health consequences for individuals with respiratory ailments; (3) that some individuals with such ailments have fled their homes during burning season to avoid the smoke; and (4) that a coroner‘s report linked at least one fatality to field burning. EPA has recognized that substantial pollution and health problems are created by the practice. See EPA, AGRICULTUR-AL BURNING: EPA MAKES NORTH-WEST FIELD BURNING A TOP PRI-ORITY 2 (2000) (“[F]ield burning can cause serious environmental and health effects.... Scientific studies—along with thousands of complaints—indicate that smoke is unhealthy.... Exposure to fine particlеs, either alone or combined with other air pollutants, has been linked to difficulty in breathing, aggravated asthma, increased emergency room visits and hospital admissions, and, in some cases, premature deaths.“).
B.
Under the CAA, EPA has the authority to issue national air quality standards setting the maximum allowable concentration of a given pollutant.
To assure that such air quality standards are met, the CAA establishes a system heavily dependant upon state participation. See
Before a SIP becomes effective, EPA must determine that it meets the CAA‘s requirements.
C.
Idaho, like every other state, was first required to submit a SIP to EPA within thirteen months of the Act‘s 1970 passage. See Train, 421 U.S. at 65. The original Idaho SIP was approved by EPA in May 1972. Approval and Promulgation of Implementation Plans, 37 Fed. Reg. 10,842, 10,861 (May 31, 1972). A provision on open burning was among the Idaho state regulations incorporated into that SIP: “No person shall allow, suffer, cause or permit any open burning operation which does not fall into at least one of the categories of Sеction 3.” Field burning was included in the types of burning allowed by Section 3, but with significant limitations:
The open burning of plant life grown on the premises in the course of any agricultural, forestry, or land clearing operation may be permitted when it can be shown that such burning is necessary and that no fire or traffic hazard will occur. Convenience of disposal is not of itself a valid necessity for burning.
- It shall be the responsibility of any person conducting such burning to make every reasonable effort to burn only when weather conditions are conducive to a good smoke dissipation and only when an economical and reasonable alternate method of disposal is not available.
- When such alternate mеthod is made available, it shall be put into use within a reasonable time.
- Any person conducting an agricultural, forestry, or land clearing burning operation similar to an operation carried out by a governmental agency shall follow the rules and procedures of the agency with regard to minimizing air pollution.
- When such burning creates air pollution or a public nuisance, additional restrictions may be imposed to minimize the effect upon the environment.
Section 3 also allowed eight other categories of open burning: food preparation and recreational fires; weed control fires; fires for firefighting training; industrial flares; residential solid waste disposal fires in rural areas; disposаl site fires; junked motor vehicle fires; and orchard fires.2
In 1993, EPA approved amendments to the Idaho SIP that substantially changed the open burning provisions. See Approval and Promulgation of Implementation Plans, 58 Fed. Reg. 39,445, 39,446 (July 23, 1993) (noting that in Idaho‘s submission, “the existing Rules for Control of Open Burning and Categories of Allowable Burning were revised extensively” and that “[t]hese new and revised provisions for open burning comply with EPA‘s general requirements for SIP control strategies” (citations omitted)). These SIP provisions, incorporating section 01.01151.04(a) of Idaho air pollution regulations in effect on December 31, 1991, contained a general prohibition on open air burning:
No person shall allow, suffer, cause or permit any open burning operation unless it is a category of open burning set forth in Section 01.01153 and does not include any of the following materials:
- Garbage;
- Dead animals or parts thereof;
- Junked motor vehicles or any materials resulting from a salvage operation;
- Tires or other rubber materials or products;
- Plastics;
- Asphalt or composition roofing or any other asphaltic material or product;
- Tar, tar paper, waste or heavy petroleum products, or paints;
- Lumber or timbers treated with preservatives;
- Trade wastes except as allowed in Section 01.01153;
- Insulated wire;
- Pathogenic wastes; or
- Hazardous wastes.
(Emphases added). The revised regulation incorporated into the SIP listed categories of allowable burning that no longer included field burning. Instead, that list retained seven of the nine categories of permitted fires included in the 1972 SIP regulations—food preparation and recreational fires, weed control fires, fires for firefighting training, industrial flares, residential solid waste disposal fires in rural arеas, disposal site fires, and orchard fires; omitted two categories of permitted fires from the 1972 list—junked motor vehicle fires and agricultural fires; and added three new categories of permitted fires—prescribed burning, dangerous material fires, and infectious waste burning.
In 2003, EPA approved another set of Idaho SIP amendments. Those amendments incorporated updated versions of Idaho regulations. This round of revisions, however, updated the open burning regulations only to reflect a recodification. See Approval and Promulgation of Implementation Plans, 68 Fed. Reg. 2217, 2218 (Jan. 16, 2003) (“[S]ince EPA last approved the Idaho SIP in 1993, Idaho has revised nearly every section of its air quality rules to some degreе. Many of these amendments have been editorial and are renumberings, changes to citations for cross-referenced rules or statutes, changes in terminology, or grammatical corrections.“). The substantive language of the incorporated provisions on open burning was identical to the language approved in the 1993 SIP.
That 2005 rulemaking approved amendments to the SIP that added field burning as an eleventh category of allowed burning. The relevant provision, incorporating section 58.01.01.617 of the Idaho Administrative Code in effect on March 21, 2003, states: “The open burning of crop residue on fields where the crops were grown is an allowable form of open burning if conducted in accоrdance with the Smoke Management and Crop Residue Disposal Act and the rules promulgated pursuant thereto.” (Citations omitted). Although Idaho first enacted statutes dealing with field burning in 1985 and amended them in 1986, 1999, and 2003, see Act of March 12, 1985, ch. 248, 1985 Idaho Sess. Laws 580 (codified as amended at
II.
A.
As detailed above, Idaho‘s 2003 SIP mandated that “[n]o person shall allow, suffer, cause or permit any open burning operation unless it is a category of open burning set forth” in ten specified sections that “establish categories of open burning that are allowed when done according to the prescribed conditions.” (Emphases added). Those ten sections cover: “Recreational and Warming Fires“; “Weed Control Fires” for “abatement along fence lines, canal banks, and ditch banks“; “Training Fires” for firefighting training; “Industrial Flares“; “Residential Solid Waste Disposal Fires“; “Lаndfill Disposal Site Fires“; “Orchard Fires“; “Prescribed Burning” for fire management purposes; “Dangerous Material Fires“; and “Infectious Waste Burning.” Field burning does not fit into any of these categories. EPA so acknowledged during the 2005 rulemaking proceedings. See Final SIP, 70 Fed. Reg. at 39,659 (“EPA recognizes the rule language ... does not, on its face, appear to identify crop residue as a category of allowed burning“); id. at 39,660 n. 1 (noting EPA‘s agreement with SAFE that field burning does not come within the “prescribed burning” exception). Nor is it debatable that field burning is an “open burning operation” covered by the SIP‘s expansive mandatory terms.
In short, given the SIP‘s broad prohibition and the absence of any pertinent exception, the plain meaning of thе SIP, in the clearest of terms, prohibits field burning. Cf. Craft v. Nat‘l Park Serv., 34 F.3d 918, 922 (9th Cir. 1994) (“[T]he regulation by its terms clearly prohibits appellants’ activities. With two exceptions, the regulation prohibits ‘dredg[ing] or otherwise alter[ing] the seabed in any way.’ ... There can be no question but that this language prohibits the excavation activities in which appellants were engaged.” (second and third alterations in original) (quoting
In interpreting a SIP, we begin with a look toward the plain meaning of the plan and stop there if the language is clear. This much is clear from Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission (BHPCA), 366 F.3d 692 (9th Cir. 2004), a leading case in this court in which the meaning of a SIP was at stake. In considering the SIP for the San Francisco Bay Area related to transit ridership, BHPCA began by observing that “[w]e start with the plain language of [the SIP]. ‘A regulation should be construed to give effect to the natural and plain meaning of its words,’ ” and then noted that “[t]he expected ridership increase was never described as anything more than a ‘target.’ ” Id. at 698 (quoting Crown Pac. v. Occupational Safety & Health Review Comm‘n, 197 F.3d 1036, 1038 (9th Cir. 1999)). Because the plan did “not, on its
B.
EPA, however, assumed during the 2005 rulemaking proceedings that this clear-as-day prohibition of field burning does not resolve the meaning of the SIP as it existed as of the 2005 proceedings. Instead, the agency considered Idаho‘s “intent” in drafting the SIP, conducting “an examination of the State‘s overall approach to field burning” and “consider[ing] such things as the legislative history of Idaho‘s provisions related to agricultural burning and smoke management,” various reports and plans prepared by the State, and various agreements signed by the State. Final SIP, 70 Fed. Reg. at 39,659. EPA also noted that its own past actions “indicate[ ] that EPA understood agricultural burning to be allowed in Idaho and that the SIP does not prohibit it.”4 Id. at 39,660. EPA did not, however, justify or explain this approach to interpreting a SIP, and the approach cannot be reconciled with the role of SIPs in the federal regulatory scheme.5
Interpreting a similar state implementation plаn scheme under the Clean Water Act,6 the Supreme Court held that the Clean Water Act “effectively incorporates into federal law those state-law standards the Agency reasonably determines to be ‘applicable.’ In such a situation, then, state water quality standards—promulgated by the States with substantial guidance from the EPA and approved by the Agency—are part of the federal law of water pollution control.” Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992).
Thus, the SIP became federal law, not state law, once EPA approved it, and could not be changed unless and until EPA approved any change. Consequently, the state‘s interpretation of the regulations incorporated into the SIP, even if binding as a matter of state law, is not directly dispositive of the meaning of the SIP.
Accordingly, we loоk to the standards governing the interpretation of federal regulations. As a general interpretive principle, “the plain meaning of a regulation governs.” Wards Cove Packing Corp. v. Nat‘l Marine Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir. 2002). Other interpretative materials, such as the agency‘s own interpretation of the regulation, should not be considered when the regulation has a plain meaning. See id. (citing Christensen v. Harris County, 529 U.S. 576, 588 (2000)); see also Roberto v. Dep‘t of the Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (“If the regulatory language is clear and unambiguous, the inquiry ends with the plain meaning.“).
The plain language of a regulation, however, will not control if “clearly expressed [administrative] intent is to the contrary or [if] such plain meaning would lead to absurd results.” Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987).7 Although “clearly expressed ... intent” of regulators therefore could overcome the plain meaning of a regulation, see id., we have never considered how definitely and in what form such intent must be expressed. Doing so now, we conclude that the notice requirements of the APA,
Courts’ reliance on the “plain meaning” rule in this setting [of interpreting administrative regulations] is not a produсt of some fetishistic attraction to legal “formalism.” In order to infuse a measure of public accountability into administrative practices, the APA mandates that agencies provide interested parties notice and an opportunity for comment before promulgating rules of general applicability. This right to participate in the rulemaking process can be meaningfully exercised, however, only if the public can understand proposed rules as meaning what they appear to say. Moreover, if permitted to adopt unforeseen interpretations, agencies could constructively amend their regulations while evading their duty to engage in notice and comment рrocedures. As applied to agency regulations, then, the plain meaning doctrine is an interpretive norm essential to perfecting the scheme of administrative governance established by the APA.
....
... To protect the integrity of [the APA‘s required] procedures, we cannot permit an agency to rely on its unexpressed intentions to trump the ordinary import of its regulatory language.
Exportal Ltda. v. United States, 902 F.2d 45, 50-51 (D.C. Cir. 1990) (citations and emphases omitted).
Such a mode of interpretation is particularly sensible under the CAA, which requires that judicial challenges be filed within sixty days of a SIP‘s approval.
Likewise, no administrative intent expressed in an appropriate way contradicts the plain meaning of the SIP: None of the published notices thаt accompanied the consideration or adoption of Idaho‘s previous SIPs established any intent concerning field burning. Instead, EPA‘s purported intent to allow field burning in Idaho is demonstrated, if at all, only through informal materials such as letters and presentations and its silent acquiescence when approving certain antipollution strategies submitted by Idaho.11 Although Idaho lawmakers and regulators made their intentions toward field burning known through more formal actions, such as enacting legislation and regulations allowing field burning, none of these measures were referenced in the published materials that accompanied adoption of the earlier SIPs.
C.
For the first time on appeal, EPA proffers twо additional reasons we should not rely on the plain meaning of the 2003 and earlier SIPs. We owe no deference to these post hoc litigating positions, adopted by counsel for EPA. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (“[W]e have declined to give deference to an agency counsel‘s interpretation of a statute where the agency itself has articulated no position on the question.... “). We do not find EPA‘s arguments persuasive.
EPA argues, first, that giving effect to the plain meaning of a SIP contrary to the true intent of state policymakers would violate case law prohibiting EPA from enacting more stringent SIP provisions than those proposed by the state. See Riverside Cement Co. v. Thomas, 843 F.2d 1246, 1247-48 (9th Cir. 1988) (holding that EPA‘s approval of a SIP after removing a proviso submitted by the state was arbitrary and capricious); Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1035-36 (7th Cir. 1984) (holding the CAA‘s partial approval provision did not allow EPA to make a SIP stricter); cf. Train, 421 U.S. at 79 (“[S]o long as the ultimate effect of a State‘s choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation.“); Hall, 273 F.3d at 1153 (“By virtue of the States’ roles in devising a strategy and adopting an implementation plan, ... ‘[i]t is to the States that the Act assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources.’ ” (alteration in original) (quoting Whitman v. Am. Trucking Ass‘ns, Inc., 531 U.S. 457, 470 (2001))). Those decisions, however, interpreted the CAA‘s provisions concerning the authority of EPA to approve or deny SIPs. They are not relevant to the task presently before the court—interpreting SIP language that was originally proposed by the state. As to that endeavor, requiring states to express their intent understandably when submitting proposed SIPs in no way detracts from states’ critical role in devising the strategy to be used in achieving the requisite air quality standards.
Second, EPA argues that crediting the SIP‘s plain meaning would contradict case law prohibiting EPA from approving SIPs based on “an elusive and illusory measure.” Riverside Cement, 843 F.2d at 1248. In Riverside Cement, EPA approved a SIP that contained a provision that explicitly stated its operation was “contingent upon the results of ongoing factfinding.” Id. at 1247 (internal quotation mark omitted). Because that provision, by its own terms, might never have become effective, the court held EPA could not rely on that provision in determining whether the SIP met the CAA‘s pollution reduction require
* * *
In sum, we hold that SIPs are interpreted based on their 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. Because the prohibitory language of the preexisting Idaho SIP plainly applies to field burning, federal law banned field burning in Idaho prior to EPA‘s 2005 approval of the SIP amendment.
III.
In commenting to EPA about Idaho‘s proposed amendment to the SIP, SAFE maintained that its approval would weaken the prior SIP and thereby violate sections 110(l) and 193 of the CAA. Section 110(l) provides that EPA “shall not approve a revision of a [SIP] if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress ... or any other applicable requirement of this chapter.”
As we have explained, EPA‘s decision to approve the 2005 amendment tо Idaho‘s SIP rested on the fundamental premise that “EPA does not believe that Idaho‘s existing SIP when viewed in its entirety prohibits the burning of crop residue.” Id. at 39,659 (emphasis added). EPA relied on this premise in rejecting SAFE‘S claims under sections 110(l) and 193. See id. at 39,660 (“The proposed SIP revision is merely a clarification of the existing SIP and does not change or otherwise relax an existing control measure and therefore will not interfere with any applicable requirements concerning attainment and reasonable further progress or other applicable requirement of the Act. EPA believes that the requirement of section 110(l) is satisfied.” (emphasis added)); id. (“In sum, EPA believes that approving the proposed SIP revision does not сhange or alter the existing SIP in Idaho which does not prohibit burning of crop residue.... Therefore, the requirements of section 193 of the Act are satisfied.” (emphasis added)). Moreover, EPA has continued to rely on the same logic in its brief to this court: “In approving [the 2005] amendment to Idaho‘s SIP, EPA understood it to be a clarification of existing state law and the SIP, governing open burning of crop residue. EPA‘s action to approve Idaho‘s SIP revision request therefore did not relax Idaho‘s pre-existing SIP with respect to open burning of crop residue, or any control requirements in the SIP that had been in effect before November 15, 1990.” (Emphases added).
We must review the EPA‘s actions based on the “grounds ... upon which the record discloses that its action was based.” Chenery, 318 U.S. at 87; see also Ctr. for Biological Diversity, 466 F.3d at 1103-04. On one hand, that principle means that we can only uphold EPA‘s action “on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass‘n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). On the other hand, it also means we must “remand to the agency for additional investigation or explanation” when the agency‘s analysis is incomplete after its flawed basis is removed. INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (internal quotation mark omitted)). The record demonstrates that because EPA based the action under review on its belief that the preexisting SIP did not ban agricultural burning, the agency did not address the question whether the 2005 amendment, if indeed a change, contravened the statutory requirements. We therefore cannot reach that question either.
We have held EPA‘s conclusion that the preexisting SIP did not ban field burning legally erroneous. Because that flawed premise is fundamental to EPA‘s determination that it did not contravene sections 110(l) or 193 of the CAA by approving the 2005 SIP, EPA‘s outcome on those statutory interpretation questions is “arbitrary, capricious, or otherwise not in accordance with law” for the purposes of our review. Hall, 273 F.3d at 1155. We therefore grant SAFE‘S petition and remand to EPA for its consideration of Idaho‘s proposed amendment as a change in the preexisting
Petition for Review GRANTED; REMANDED to EPA.
MARSHA S. BERZON
UNITED STATES CIRCUIT JUDGE
Notes
Each agency shall separately stаte and currently publish in the Federal Register for the guidance of the public
...
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.
After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this titlе apply instead of this subsection.