CASE SUMMARIES.

• Position: 2016-2017 Ninth Circuit Review

1. ENVIRONMENTAL QUALITY

   1. Clean Water Act

      1. Natural Resources Defense Council, Inc. v. County of Los Angeles, 840 F.3d 1098 (9th Cir. 2016).

      Natural Resources Defense Council and Santa Monica Baykeeper (collectively, NRDC) filed a lawsuit in 2008 against Los Angeles County and the Los Angeles County Flood Control District, alleging these defendants violated the terms of a 2001 National Pollutant Discharge Elimination System (NPDES) permit, issued under the Clean Water Act (1) (CWA), by discharging polluted stormwater into the region's waters. In 2013, the Ninth Circuit found that defendants violated the permit as a matter of law, based on pollution levels in the receiving waters. (2) However, by this point defendants had sought and received a new permit. On this basis, defendants filed a motion to dismiss in 2015, alleging that the challenge was moot. The district court, after finding that the new permit relaxed applicable standards and that defendants were in compliance with the new permit, granted defendants' motion. (3) The Ninth Circuit, reviewing the mootness determination de novo, reversed.

      The Ninth Circuit stated that a motion to dismiss a case as moot must "demonstrate that it is absolutely clear that the allegedly wrong behavior could not reasonably be expected to recur." (4) Defendants argued that the 2012 permit changed compliance requirements, thereby supplanting the 2001 permit, and that present and future compliance with these requirements was undisputed.

      The Ninth Circuit first noted that claims for injunctive relief do not become moot simply because a new permit is issued; rather, that new permit must also result in changes that render the requested injunction incapable of providing effective relief. The court stated that the relaxed standards in the new permit are contingent on the success of two watershed management programs, and that this contingency failed to satisfy the defendant's burden of "absolutely clear" evidence that a future permit violation would not occur. In addition, the Ninth Circuit determined that the district court had erroneously placed the evidentiary burden on NRDC, rather than on the defendants.

      Applying the "absolutely clear" standard to the evidence presented by the defendants, the Ninth Circuit found that defendants could not satisfy the standard for two reasons. First, the court noted the relaxed standards in the 2012 permit might be invalidated in a future court proceeding, given that a concurrent proceeding filed by NRDC challenged the 2012 permit for violations of the CWA's "anti-backsliding" provisions. Second, regardless of the 2012 permit's validity, the Ninth Circuit noted defendants had not completed financing and implementing the watershed management programs required before the relaxed standards applied. Given the uncertainty surrounding these programs, the Ninth Circuit found that defendants had failed to establish that future injunctive relief would not be necessary.

      In sum, the Ninth Circuit reversed the district court's approval of a motion to dismiss on mootness grounds. The court found that defendants failed to provide "absolutely clear" evidence that plaintiffs' lawsuit sought a remedy that was no longer necessary in light of the 2012 permit.

   2. Clean Air Act

      1. Arizona ex. rel. Darwin v. U.S. Environmental Protection Agency, 815 F.3d 519 (9th Cir. 2016).

         The State of Arizona and a local power district (collectively, Arizona) (5) sued the United States Environmental Protection Agency (EPA) after EPA's decision to reject part of Arizona's air quality plan under the Clean Air Act (6) (CAA) in favor of a replacement federal plan. EPA issued a final rule in 2012 that negated a technology standard set by Arizona's State Implementation Plan (SIP) for regional haze and simultaneously enacted a different standard under a Federal Implementation Plan (FIP). (7) Plaintiffs each filed petitions for review and the cases were consolidated, at which point environmental groups intervened on behalf of EPA. (8) Reviewing the rule under the arbitrary and capricious standard of the Administrative Procedure Act (9) (APA), the Ninth Circuit denied the petitions.

         The Arizona SIP set technology standards for regional haze at three power plants: the Apache Generating Station, the Cholla Power Plant, and the Coronado Generating Station. Only the Coronado standard was at issue in this case. The CAA requires SIPs to determine the best available retrofit technology (BART) for certain major emission sources as a standard for reducing emissions. (10) Arizona's SIP established BART for the Coronado Station that EPA, upon review, found to be too lenient. EPA rejected the SIP and then imposed a higher BART requirement through the FIP. Arizona filed suit to challenge EPA's rejection of the SIP and promulgation of the FIP on both substantive and procedural grounds.

         Regarding the SIP, Arizona first argued that EPA acted arbitrarily in proceeding to assess Arizona's BART determinations separately from the SIP as a whole. In particular, Arizona claimed that BART is just one aspect of broader "reasonable progress" goals for regional haze and cannot properly be evaluated as a standalone feature. The Ninth Circuit disagreed, stating that the CAA expressly allows EPA to approve or disapprove particular elements of a SIP. (11) Moreover, the court noted that BART determinations are subject to criteria that are independent from the goals of the SIP. (12) Therefore, the court found it appropriate for EPA to assess BART as a freestanding determination.

         Second, Arizona claimed that EPA's decision to reject the SIP lacked support in the record. EPA concluded that the BART set by the SIP was deficient in its cost calculations and its evaluation of visibility improvements, among other factors. On each point, the Ninth Circuit found for EPA. The court held that Arizona was required to document cost calculations of BART compliance, and instead, it had relied on cost summaries from the power district. Next, the court held that Arizona needed to assess the degree to which the SIP would improve visibility but had failed to do so for the Gilas Wilderness Area, a heavily impacted area in the region. Lastly, the court held that Arizona needed to justify its BART decisions on the basis of specific factors and that the state, despite presenting information relevant to each factor, had failed to explain its determinations in the context of those factors.

         Arizona next challenged EPA's promulgation of the FIP. First, Arizona argued that EPA committed a procedural error by promulgating the FIP in the same rule that rejected the SIP. In particular, Arizona alleged that EPA misconstrued the deadline in a prior consent decree as requiring a FIP by 2012. The court dismissed this argument, finding that the CAA permits EPA to order a FIP "at any time" within two years of disapproving a SIP. (13) The court then noted that EPA was required to issue a FIP at the time of the 2012 final rule because, in this instance, the CAA required some type of regional haze plan to be in place. (14) Therefore, regardless of its understanding of the consent decree's requirements, EPA was obligated to issue the FIP under statutory requirements.

         Finally, Arizona challenged the substance of the FIP. First, Arizona challenged EPA's visibility assessment, specifically taking issue with EPA's use of a cumulative approach to assess visibility at the region's Class I areas (referring to Arizona's national parks and wilderness areas). Second, Arizona challenged EPA's cost analysis, claiming EPA calculated the new BART standard without considering site-specific costs. Third, Arizona challenged the FIP on the basis that the FIP's emission limits were neither reasonable nor achievable. On the first two points, the court found for EPA. The court viewed the cumulative approach in the visibility assessment as a supplement to adequate computer modeling completed for each of the eleven Class I areas. Regarding site-specific costs, the court held that EPA reasonably relied on data from past Coronado projects and on cost estimates from the power district. The court refused to enter a ruling on the third point--the reasonableness of the FIP's emissions limit--because EPA recently proposed a revision to increase that limit.

         In sum, the Ninth Circuit denied Arizona's petitions for review challenging EPA's final rule because EPA followed the appropriate procedure and had adequate support to both reject the SIP and promulgate the FIP. The court stayed proceedings on a final point, the feasibility of the FIP emission limits, pending further EPA action.

      2. Bahr v. U.S. Environmental Protection Agency, 836 F.3d 1218 (9th Cir. 2016).

         Sandra Bahr and David Matusow (collectively, Petitioners), two residents of Phoenix, Arizona, petitioned for review of the approval of Arizona's 2012 state implementation plan (SIP) by the United States Environmental Protection Agency (EPA). Petitioners first claimed that EPA acted contrary to the Clean Air Act (15) (CAA) by failing to require that Arizona include in its Five Percent Plan an updated analysis of best available control measures (BACT) and most stringent measures (MSM), and that EPA's failure constituted an "abuse of discretion" under the Administrative Procedure Act (16) (APA). (17) Second, Petitioners claimed that EPA abused its discretion within the meaning of the APA when it permitted the exclusion of 135 exceedances from Arizona's air quality monitoring data when EPA labeled the exceedances as "exceptional events." (18) Finally, Petitioners claimed that EPA violated the CAA by allowing Arizona to satisfy the SIP "contingency measures" requirement with measures that had already been implemented rather than measures to be triggered if an area fails to meet requisite emissions targets. The Ninth Circuit rejected Petitioners' arguments as to their first two claims. The court agreed with Petitioners...