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El Comite para el Bienestar de Earlimart v. U.S. Environmental Protection Agency

United States Court of Appeals, Ninth Circuit

May 8, 2015

EL COMITÉ PARA EL BIENESTAR DE EARLIMART, an unincorporated association; ASSOCIATION OF IRRITATED RESIDENTS, a California non-profit corporation; WISHTOYO FOUNDATION, a California non-profit corporation; VENTURA COASTKEEPER, a program of the Wishtoyo Foundation, Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY; LISA P. JACKSON, in her official capacity as Administrator of the U.S. EPA; JARED BLUMENFELD, in his official capacity as Regional Administrator for Region IX of the U.S. EPA, Respondents

Argued and Submitted, San Francisco California February 12, 2015.

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[Copyrighted Material Omitted]

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On Petition for Review of an Order of the Environmental Protection Agency.

SUMMARY[**]

Environmental Law

The panel denied a petition for review brought by several community organizations challenging the Environmental Protection Agency's 2012 approval of revisions and additions to California's Pesticide Element for its State Implementation Plan under the Clean Air Act, relating to the reduction of volatile organic compounds, precursors of ozone, in the San Joaquin and Ventura air basins; and held that the EPA was not arbitrary and capricious in construing the Pesticide Element and approving Fumigant Regulations and the SIP Revision.

The panel held that the EPA's interpretation of the Pesticide Element's commitment to reduce emissions by certain levels was not arbitrary and capricious in light of the ambiguity in the Pesticide Element's plain language.

The panel held that the EPA reasonably determined that the revisions fulfilled the commitment in the original Pesticide Element to adopt enforceable regulations for reducing emissions because the EPA's explanation demonstrated that it considered the relevant data and factors regarding emission levels. The panel also held that the action was not in conflict with the court's decision in El Comité para el Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1073 (9th Cir. 2008).

The panel held that the EPA was not unreasonable in finding that California's assurances of compliance with federal and state law pursuant to § 110(a)(2)(E) of the Clean Air Act were adequate in light of an earlier Title VI civil rights complaint filed with the EPA concerning volatile organic compounds emissions in the San Joaquin Valley.

Brent J. Newell (argued), Sofia Parino, Center on Race, Poverty & the Environment, San Francisco, California, for Petitioners.

Robert G. Dreher, Acting Assistant Attorney General, Dustin J. Maghamfar (argued), Environmental Defense Section, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Jefferson Wehling, Office of Regional Counsel, Jan Tierney, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C., for Respondents.

Rissa A. Stuart, Ann M. Grottveit, Katherine E. Underwood, Kahn, Soares & Conway, LLP, Sacramento, California, for Amicus Curiae Air Coalition Team.

Before: Mary M. Schroeder and Barry G. Silverman, Circuit Judges and Marvin J. Garbis,[*] Senior District Judge. Opinion by Judge Schroeder.

OPINION

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SCHROEDER, Senior Circuit Judge:

We deal with another phase of California's efforts to create a " Pesticide Element" for its State Implementation Plan (" SIP" ) that meets the requirements of the Clean Air Act, 42 U.S.C. § 7401 et seq. This is a challenge by several community organizations to the Environmental Protection Agency's (" EPA" ) 2012 approval of revisions and additions to California's Pesticide Element relating to the reduction of volatile organic compounds (" VOCs" ), precursors of ozone, in the San Joaquin and Ventura air basins.

In an earlier decision involving the Pesticide Element, we held that certain of its commitments were not enforceable emissions standards or limitations of the SIP that could be challenged pursuant to § 304(a) of the Clean Air Act. El Comité para el Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1073 (9th Cir. 2008). The EPA subsequently approved revisions to California's Pesticide Element, so this is a suit pursuant to § 307(b) of the Clean Air Act, which provides for review of agency action in approving a SIP.

There are three issues presented. The first is whether the EPA was arbitrary and capricious in its interpretation of the Pesticide Element's commitment to reduce emissions by certain levels. We hold that the EPA's interpretation was reasonable in light of the ambiguity in the Pesticide Element's plain language.

The second issue is whether the EPA reasonably determined that the revisions fulfilled the commitment in the original Pesticide Element to adopt enforceable regulations for reducing emissions. We hold that the determination was reasonable, because the EPA's explanation demonstrates that it considered the relevant data and factors regarding emission levels. Further, the action was not in conflict with our decision in Warmerdam. Because the revisions fulfilled California's original commitment, the EPA correctly determined that it did not need to consider whether the original commitment itself was enforceable.

The third issue is whether the EPA was unreasonable in finding that California's assurances of compliance with federal and state law pursuant to § 110(a)(2)(E) of the Act were adequate in light of an earlier Title VI civil rights complaint filed with the EPA concerning VOC emissions in the San Joaquin Valley. We hold that the EPA's determination was not unreasonable because it provided a reasoned explanation for its actions which took into account the EPA complaint, as well as the EPA's own investigation, and evidence of California's subsequent compliance with a settlement order.

We therefore deny the petition for review, with the hope that our action will bring to an end litigation and administrative

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proceedings over the Pesticide Element dating back to 1994.

BACKGROUND

I. Statutory Background

The Clean Air Act (" CAA" or " Act" ) directs the EPA to establish national ambient air quality standards (" NAAQS" ) for pollutants that endanger public health or welfare. 42 U.S.C. § 7409. The CAA requires the states to submit State Implementation Plans, or " SIPs," showing how the states will attain the NAAQS for the major air pollutants. Id. § 7410(a)(1). The EPA is tasked with determining whether a SIP complies with the Act's requirements. Id. § 7410(k)(3). Once approved by the EPA, a SIP has the " force and effect of federal law." Safe Air for Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir. 2007).

A state must designate the areas within its boundaries as either " attainment" or " nonattainment" depending on whether they meet the NAAQS for a given pollutant. See 42 U.S.C. § 7407(d)(1)(A). SIPs covering nonattainment areas must provide " enforceable emission limitations, and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment" by the applicable deadline. Id. § 7502(c)(6). The state is further required to provide " necessary assurances" that no state or federal law would impede implementation of the SIP or parts thereof. Id. § 7410(a)(2)(E).

These SIPs also must include an attainment demonstration, to show through air quality modeling that the SIP's proposed control measures will ensure the areas timely attain the ozone standard, id. § 7502(c)(1), and a reasonable further progress demonstration, to show that the SIP will reduce pollutant emissions by a specified percentage each year until the attainment year. Id. § 7511a. States must submit to the EPA for approval any proposed revisions to a SIP. The Act's " anti-backsliding" provision mandates that the EPA " shall not approve a revision of a [SIP] if the revision would interfere with any applicable ...


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