Case summaries.

1. ENVIRONMENTAL QUALITY

   1. Clean Air Act

      1. Hail v. Norton, 266 F.3d 969 (9th Cir. 2001), infra Part V.B.

      2. Hall v. United States Environmental Protection Agency, 273 F.3d 1146 (9th Cir. 2001).

         Robert Hall petitioned a decision by the Environmental Protection Agency (EPA) approving revisions to Clark County, Nevada's air quality plan. The Ninth Circuit held that EPA applied an incorrect standard in reviewing the air quality plan. However, the Ninth Circuit also found that EPA provided reasonable hearing and notice, the agency's revisions after publication of the initial notice were permissible, and that no prejudice resulted from the state's failure to forward the proposed revisions to EPA within sixty days as required by statute. Hall's petition was granted in part, denied in part, and remanded to EPA.

         The Clean Air Act (CAA) (1) states that EPA shall set National Ambient Air Quality Standards (NAAQS), which are designed to prevent and control air pollution. (2) To effectuate this objective, the CAA requires each state to submit a State Implementation Plan (SIP) detailing how that state will achieve the established air quality standards. (3) While the CAA gives each state latitude in selecting the means to achieve these objectives, the Act requires each state to regulate emissions from new stationary sources and automobiles, and to enforce minimum emissions control standards for these sources. These SIPs are subject to EPA review.

         Congress has established NAAQS objectives since 1970, but amendments to the CAA in 1977 and 1990 have steadily pushed back the deadlines for those objectives. The 1990 Amendments included minimum emission controls for new stationary sources that differed from those established in the 1981 Amendments. (4)

         Hall challenged EPA's decision to approve revisions to the SIP that would modify emissions standards for new stationary source emissions. Addressing Hall's challenge, the Ninth Circuit examined EPA's SIP review responsibility and whether the revisions interfered with the current attainment requirements of the CAA. In briefs filed with the court, EPA justified its approval of the SIP based on its interpretation of section 110(l) of the CAA: (5) "`If the SIP revision does not relax the existing SIP ... then the SIP revision does not `interfere' with attainment [or] reasonable further progress ... requirements and no further inquiry is needed.'" (6) EPA then stated that the revised SIP did not relax the air quality rules approved in 1981, and therefore, it would not interfere with reasonable further progress towards or attainment of the NAAQS.

         To determine the validity of this assertion, the Ninth Circuit first looked at EPA precedent to determine EPA's review responsibility under section 110(l) of the CAA. EPA first argued that its interpretation of section 110(l) was owed deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron). (7) EPA also argued for deference because its interpretation served as the basis of other EPA final rules regarding SIPs. The court, however, noted that even if previous final rules substantiated EPA's interpretation of section 110(l), every previously promulgated rule explicitly denied any precedential effect. The Ninth Circuit stated that interpretations of the CAA presented in rules that lack "force of law" are not entitled to Chevron deference. The court similarly denied deference on any other ground. The court found that in simply not relaxing preexisting rules the agency did not necessarily establish "non-interference," despite EPA's claim to the contrary. Instead, the court endorsed case-by-case review of SIP revisions.

         Next, the Ninth Circuit analyzed section 110(l) of the CAA to determine whether EPA's interpretation was statutorily correct. Because the text of section 110(l) of the CAA does not set out EPA's review responsibility, the court examined the history of the provisions which spoke to that responsibility.

         The court noted that prior to the 1990 Amendments EPA interpreted SIP review provisions to mean that revisions could be approved if they did not "interfere with the attainment or maintenance of [NAAQS]." (8) EPA disapproved plans if the revisions would not allow for attainment of the national standards. (9) EPA reiterated this non-interference position in the SIP Preamble for 1977 Amendments, (10) and Congress incorporated it into the 1990 Amendments of the CAA. (11) Thus, EPA's review responsibility, the Ninth Circuit noted, was to determine whether a particular component of the SIP complied with the NAAQS and whether the revised SIP would suffice to meet the required reductions in air pollution. (12) The court elaborated upon this interpretation by noting that this determination cannot be made in a vacuum, but must be determined in relation to the SIP as a whole.

         After determining EPA's review responsibility, the Ninth Circuit quickly noted that EPA did not arrive at the "no-relaxation" rule by empirically analyzing the existing level of pollution as compared with national standards, but instead premised it on necessary statutory equivalence between the non-relaxation requirements of the 1981 rules and non-interference with present attainment requirements. EPA established the 1981 rules as a baseline and determined that all revisions that minimally complied with those rules constituted non-interference. The court dismissed this method, stating that there is "no necessary correlation between maintaining the stringency of the 1981 rules and meeting the post-1990 attainment requirements of the Act." (13)

         After determining that EPA applied an incorrect standard in reviewing the revised SIP, the Ninth Circuit turned to whether EPA adequately published the rules and revisions of the revised SIP. The court documented the steps taken by EPA, including notice in local newspapers, a notice of proposed rulemaking, and publication of the final rule, and determined that those steps provided the public with an adequate opportunity to comment.

         The Ninth Circuit then examined whether continued revision was permissible after EPA's initial proposed rulemaking. EPA published a notice of proposed rulemaking in 1995, and Clark County later received extensive comments from the public and suggestions from EPA. Following notice and comment, EPA made its final approval of the revised new source review program. Hall contended that no comments should have been accepted between the time of the proposed rulemaking and the announcement of the final rule. Hall noted that nothing in the Administrative Procedure Act (APA) (14) requires EPA to seek comments on a revised final rule. However, the court highlighted the fallacy of this argument, noting that notice and comment rulemaking is by design intended conceivably to alter the proposed rule upon receipt of public input. Because the public had opportunity to comment on the numerous drafts preceding the final rule and because no statutory right entitled Hall to comment on the revised final rule, continued revision was permissible.

         Lastly, the court briefly addressed whether Nevada's failure to submit the SIP revisions to EPA within sixty days of approval by the county constituted prejudice warranting reversal of EPA's decision. Because Hall failed to demonstrate any prejudice resulting from this transgression, the Ninth Circuit determined that no action was warranted.

      3. United States v. Pearson, 274 F.3d 1225 (9th Cir. 2001), infra Part III.

   2. Clean Water Act

      1. Borden Ranch Partnership v. United States Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001), cert. granted, 70 U.S.L W. 376 (U.S. June 10, 2002) (No. 01-1243).

         Angelo K. Tsakopoulos (Tsakopoulos) appealed the district court's ruling (15) that, as the owner of Borden Ranch, he had violated the Clean Water Act (CWA) (16) on 358 separate occasions. The district court had levied a $500,000 fine against Tsakapoulos and required him to restore four acres of wetlands. The Ninth Circuit affirmed the district court's holding that Tsakopoulos had violated the CWA (except with respect to vernal pools) and remanded the case for a recalculation of civil penalties in light of the exclusion of the vernal pools.

         Tsakopoulos purchased the 8400-acre Borden Ranch in California's Central Valley in 1993. At the time the ranch was purchased, the property consisted largely of various types of wetlands: vernal pools, swales, and intermittent drainages. One common element of these various wetlands is a restrictive layer at their base that serves to contain the surface water within the area of the vernal pool, swale or drainage, and to prevent that water from percolating downwards through the soil. This restrictive layer also inhibits or prevents the downward growth of roots from crops.

         To make his property amenable to orchard and vineyard farming, Tsakopoulos began deep ripping the wetlands on his property. Deep ripping is a process by which large prongs are dragged behind a bulldozer or tractor through the earth, perforating the restrictive layers at the bottom of the wetlands. Once these blades have perforated the restrictive layer in the wetlands, the water drains from beneath the restrictive layer. Any crop planted above the restrictive layer is thus able to send roots deep into the soil.

         Tsakopoulos began deep ripping in the fall of 1993. After he began, the Army Corps of Engineers (Corps) issued him a retroactive permit in exchange for various mitigation measures. In the fall of 1994 and again in 1995, Tsakopoulos engaged in deep ripping in protected wetlands that he did not have a permit to alter. In response, the Corps issued cease and desist orders after both of these incidents, and in May of 1996 the Corps and the Environmental Protection Agency (EPA) entered into an administrative order on consent with Tsakopoulos by which Tsakopoulos would refrain from further wetlands violations and set aside a 1368-acre preserve.

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