Case summaries.

• Position: I. Environmental Quality, p. 723-757 - 2014 Ninth Circuit Environmental Review

1. ENVIRONMENTAL QUALITY

1. Clean Air Act

   1. California ex rel. Imperial County Pollution Control Dist. v. U.S. Dep't of the Interior, 751 F.3d 1113 (9th Cir. 2014)

      The Imperial County Pollution Control District and the County of Imperial (collectively, Imperial County) sued the Secretary of the Department of Interior (Secretary) in the United States District Court for the Southern District of California. Imperial County sued the Secretary under the National Environmental Policy Act (NEPA) (1) and the Clean Air Act (CAA), (2) challenging the adequacy of an Environmental Impact Statement (EIS) regarding water transfer agreements. The district court held that Imperial County lacked standing, and, in the alternative, that the Secretary did not violate NEPA. On appeal, the Ninth Circuit reversed the standing decision, but affirmed the NEPA merits decision. Additionally, the Ninth Circuit held that the record made clear that the Secretary did not violate the CAA. (3)

      The case centered on the Salton Sea, which was created in 1905 when an irrigation canal from the Colorado River overflowed and flooded a basin in the California desert near the Mexican border. Subsequent irrigation runoff from California's Imperial and Coachella Counties has continued to replenish the Salton Sea. With water in short supply recently, the water districts in Imperial and Coachella Counties agreed to transfer some of their irrigation runoff to urban areas in southern California. The Secretary prepared an EIS regarding these agreements. While the EIS identified potentially serious environmental consequences for the Salton Sea, among other locations, the Secretary ultimately approved the agreements.

      Imperial County sued, alleging the Secretary violated both NEPA and the CAA by improperly preparing the EIS and by not performing a CAA conformity determination. Other local water districts intervened, (4) and the parties all cross-moved for summary judgment. The district court granted summary judgment for the Secretary and the water districts, holding that Imperial County did not have standing to sue, and, alternatively, the Secretary had not violated NEPA. (5) The Ninth Circuit reviewed the district court's grant of summary judgment de novo.

      The Ninth Circuit first held that Imperial County had Article III standing to bring its claims under NEPA and the CAA. In the context of challenges to agency action under NEPA, Article III standing requires the challenging party to allege: 1) the Secretary has violated a procedural rule; 2) those rules were designed to protect the party's interests; and 3) the challenged action threatened concrete interests. (6) The Ninth Circuit concluded that Imperial County met all three elements for NEPA standing. As to the CAA claim, the Ninth Circuit held that Imperial County had properly asserted an enforcement action under the CAA, and that the Administrative Procedure Act (APA) (7) waived the Secretary's sovereign immunity. (8) As a result, the Ninth Circuit held that Imperial County had standing to challenge the actions under both NEPA and the CAA.

      Second, the Ninth Circuit determined that the Secretary did not violate NEPA. Imperial County argued that the Secretary violated NEPA by incorrectly "tiering" and incorporating by reference previous EISs and non-NEPA documents into the EIS, by preparing two EISs, and by failing to prepare a supplemental EIS. (9) Agencies are encouraged to save time and resources by tiering an EIS with previous impact statements that addressed the same issues. (10) Similarly, agencies are encouraged to "incorporate material into an environmental impact statement by reference when the effect will be to cut down on bulk without impeding agency and public review of the action." (11) The Ninth Circuit held that the Secretary correctly "tiered" the EIS by summarizing previous EISs and other NEPA documents and also correctly incorporated those documents by reference. While Imperial County argued that the Secretary improperly "tiered" and incorporated by reference a number of non-NEPA documents, the Ninth Circuit held that those non-NEPA documents were simply incorporated by reference and so their inclusion did not violate NEPA.

      Addressing Imperial County's other major arguments regarding the EIS, the Ninth Circuit held that the Secretary had not acted arbitrarily in preparing two separate statements for different agreements. The court rejected the notion that the Secretary attempted to circumvent unfavorable data by separating the analyses, and instead held that each statement had independent utility. (12) Furthermore, while Imperial County argued that the Secretary had abused her discretion by failing to prepare a supplemental EIS after adopting a new mitigation plan, the Ninth Circuit held that there was no abuse of discretion because the new plan was within the spectrum of alternatives originally discussed in the draft EIS. (13) Finally, reviewing the Secretary's discussion of alternative options, (14) the Ninth Circuit determined the Secretary had not acted arbitrarily and capriciously in comparing the impact of the planned agreements only to the impact of a total lack of action. The Ninth Circuit explained that since the parties had negotiated the disputed agreements, there was no need to consider alternatives no one had agreed to. Therefore, the Ninth Circuit concluded that the Secretary had not violated NEPA in her preparation of the EIS.

      Third, the Ninth Circuit concluded that the Secretary had not violated the CAA by failing to perform a CAA conformity determination regarding the proposed plan. The Secretary is required to perform a conformity determination when the total of direct and indirect emissions of a criteria pollutant exceeds a certain level. (15) The Ninth Circuit held that the Secretary had not abused her discretion in concluding that, because the diversion of water would occur at dams far removed from the Salton Sea, the actions resulting out. of these agreements would not directly cause increased emissions. Further, the court determined it was not an abuse of discretion to conclude that the agreements would not indirectly cause increased emissions by reducing the level of the Salton Sea, because the resulting emissions would not be "practically control[led]" by the Secretary. (16)

      Ultimately, the Ninth Circuit held that while Imperial County had standing to bring its claims, the Secretary had not violated either NEPA or the CAA. Therefore, the Ninth Circuit reversed in part and affirmed in part the district court's grant of summary judgment.

   2. WildEarth Guardians v. U.S. Envtl. Prot. Agency, 759 F.3d 1064 (9th Cir. 2014)

      WildEarth Guardians (WildEarth) (17) sought review of the approval by the United States Environmental Protection Agency (EPA) (18) of Nevada's state implementation plan (SIP) for regional haze under the Clean Air Act (CAA). (19) WildEarth alleged that EPA erred in approving Nevada's SIP due to inadequate reasonable progress goals for improving visibility for the days on which visibility is most impaired, or "worst days," in the Jarbridge Wilderness Area. WildEarth also claimed that Nevada's SIP contained an improper best available retrofit technology (BART) determination for sulfur dioxide (S[O.sub.2]) emissions from the Reid Gardner Generating Station (Reid Gardner)." (20) The Ninth Circuit heard WildEarth's claims directly and reviewed them under an arbitrary and capricious standard of review. Holding that WildEarth lacked standing to challenge EPA's approval of Nevada's reasonable progress goals, and that EPA's approval of Nevada's S[O.sub.2] BART determination was entitled to deference, the Ninth Circuit dismissed the petition for review in part and denied the petition in part.

      Under the CAA, EPA must promulgate regulations designed to improve visibility in mandatory Class I federal areas, including national wilderness areas and certain national parks. (21) EPA's Regional Haze Rule (22) ensures improved visibility in Class I federal areas by requiring SIPs to contain reasonable progress goals for improving visibility on worst days (23) and a BART determination for each BART-eligible pollution source. (24) EPA's BART Guidelines assist states in determining emissions limitations for these sources by providing an evaluation process based upon five statutory factors. (25) For smaller plants with a total generating capacity below 750 megawatts, the court concluded BART Guidelines are advisory. (26)

      The BART-eligible pollution source in this case, Reid Gardner, had a generating capacity below 750 megawatts. Nevada hired the firm CH2M HILL to prepare the BART analysis for Reid Gardner and CH2M HILL recommended a 0.40 pounds per million British thermal units (lb/MMbtu) limitation on S[O.sub.2]. Nevada reviewed and revised this limitation down to 0.15 lb/MMbtu. Nevada's SIP submission to EPA provided progress goals for improved visibility in Jarbridge Wilderness Area and established limitations on emissions of S[O.sub.2], nitrogen oxides, and particulate matter. WildEarth challenged Nevada's SIP as inadequate to improve visibility on the worst days in Jarbridge Wilderness and as improperly allowing an increase in S[O.sub.2] emissions from Reid Gardner.

      Hearing the case directly, the Ninth Circuit first determined that WildEarth did not have standing to challenge EPA's approval of Nevada's progress goals for improved visibility in the Jarbridge Wilderness Area. WildEarth based its standing claim on the declaration of a member who lived in Colorado but regularly visited Nevada. However, the Ninth Circuit held that the member did not have standing, because even though she asserted displeasure in seeing pollution emitted by a Nevada power plant and expressed concern for her health, she had never visited Jarbridge Wilderness Area, nor did she have any future plans to do so. Therefore, the Ninth Circuit determined that the member failed to show a...