I. Environmental quality.

Position:Case summaries, part 1 - 2015 Ninth Circuit Environmental Review
  1. Clean Air Act

    1. El Comite Para el Bienestar de Earlimart v. U.S. Environmental Protection Agency, 786 F.3d 688 (9th Cir. 2015).

      In this case, El Comite Para el Bienestar de Earlimart and several other community organizations (collectively, El Comite), (1) petitioned for judicial review of the United States Environmental Protection Agency's (EPA) 2012 final action approving revisions to California's State Implementation Plan (SIP) for achieving emission standards under the Clean Air Act (CAA). (2) Specifically, El Comite argued that EPA's approval of California's Pesticide Element and Fumigant Regulations, which established goals for reducing volatile organic compound (VOC) emissions, 1) was unreasonable in light of the SIP's plain language, 2) ignored an earlier remand order requiring EPA to ensure enforceability of the Element's emission reduction commitments, and 3) was prohibited due to EPA's failure to secure "necessary assurances" (3) from California that the SIP would not violate Title VI of the Civil Rights Act (4) by exposing Latino schoolchildren to a disparate impact from pesticide use. The Ninth Circuit considered the steps EPA had taken in approving the plan and found that: 1) EPA had interpreted ambiguities in the Pesticide Element in a reasonable manner, 2) EPA did not need to consider the enforceability of earlier control measures because EPA could enforce the revised control measures, and 3) EPA had reasonably determined that California had supplied the necessary assurances that enforcement of the new Pesticide Element would comply with federal law, including Title VI of the Civil Rights Act. The court therefore upheld EPA's final order approving the revised SIP.

      Prior to this case, El Comite Para el Bienestar de Earlimart v. Warmerdam (El Comite I) (5) was litigated to enforce emissions standards in the Pesticide Element of California's 1994 SIP. The 1994 Element committed California to reducing VOC emissions by a maximum of 20% from the 1990 baseline by 2005 and gave California's Department of Pesticide Regulation (DPR) the authority to adopt additional regulatory measures to ensure those reductions were achieved. EPA approved the Pesticide Element after California submitted additional supporting documentation. DPR then determined that no further regulations were needed to meet its reduction commitments. Among other challenges, El Comite filed a petition for review challenging EPA's approval of the Pesticide Element on the grounds that the Element contained no enforceable commitments. The Ninth Circuit remanded the petition to EPA with instructions to determine whether EPA could enforce the Pesticide Element's commitments. Before EPA complied with that order, California submitted its revised 2009 SIP. The revised SIP's Pesticide Element established permissible fumigant emissions levels as well as methods to achieve those limitations and monitor compliance. EPA approved the revisions in 2012 after determining that the revisions included enforceable emission reduction standards. At that point, El Comite filed the petition at issue in this case.

      This case required the Ninth Circuit to resolve three issues related to EPA's approval of California's revised SIP. The court considered 1) whether EPA reasonably interpreted the Pesticide Element; 2) whether the revised Pesticide Element was sufficiently enforceable; and 3) whether California had supplied adequate assurances of compliance with federal law. First, the court concluded that EPA's interpretation of the Pesticide Element's VOC reduction commitments was reasonable in light of ambiguity in the Element's language. El Comite argued that the Pesticide Element unambiguously required a 20% reduction in emissions for the San Joaquin Valley rather than the 12% reduction approved by EPA, and that EPA failed to consider whether the revision from 12% to 20% violated the Act's "anti-backsliding" provision. (6) The court, however, agreed with EPA that the Pesticide Element ambiguously and inconsistently referenced both 12% and 20% VOC emission reduction commitments. Based on that ambiguity, the coin! deferred to EPA's interpretation setting the Pesticide Element's reduction commitment at 12%.

      Second, the Ninth Circuit agreed with EPA that the revised Pesticide Element established enforceable emission reduction regulations. The court first deferred to EPA's conclusion that the Element's fumigant regulations were sufficient to keep pesticide VOC emissions below required levels because EPA based that determination on a consideration of the relevant factors and there had been no clear error in EPA's judgment. The court next deferred to EPA's determination that the fumigant regulations' failure to regulate nonfumigant VOC emissions was acceptable because the regulations were still designed to reduce overall VOC emissions by 12% as required by the Pesticide Element. The court finally deferred to EPA's decision to ignore the remand order in El Comite I instructing EPA to consider the enforceability of the original Pesticide Element because EPA had determined that the revised Element was enforceable.

      Finally, the Ninth Circuit upheld EPA's acceptance of California's assurances of compliance with Title VI of the Civil Rights Act because EPA provided a reasoned explanation for its determination. During the comment period on the proposed revision, El Comite submitted evidence that it claimed showed that the revised SIP could have a disparate impact on Latino schoolchildren in violation of Title VI of the Civil Rights Act. El Comite argued that the revision potentially violated the CAA, which requires states to provide EPA with the necessary assurances that no federal or state law prevents implementation of any portion of the SIP. (7) In support, El Comite submitted EPA's findings and analysis undertaken as part of an earlier administrative complaint, in which EPA determined that DPR's renewal of a pesticide registration would have a disparate impact on Latino schoolchildren, along with EPA's subsequent settlement agreement with DPR. California responded by submitting to EPA proof of the state's compliance with the earlier settlement agreement along with reports indicating that the revised SIP would reduce overall pesticide emissions. EPA, in turn, determined that California had provided the necessary assurances of compliance with state and federal law. El Comite argued that EPA should have scrutinized California's assurances more closely, but the Ninth Circuit deferred to EPA's determination and explained that EPA must provide a reasoned judgment as to whether a state has supplied the necessary assurances of compliance with state and federal law, but that the actual nature of those assurances is left to EPA's discretion.

      The Ninth Circuit ultimately upheld EPA's final action approving California's 2012 revised SIP, including EPA's interpretation of the SIP's Pesticide Element. The court thus denied El Comite's petition for judicial review.

    2. Committee for a Better Arvin v. U.S. Environmental Protection Agency, 786 F.3d 1169 (9th Cir. 2015).

      In this case, the Committee for a Better Arvin, along with a coalition of environmental and community groups (collectively, Committee for a Better Arvin), (8) sought judicial review of the United States Environmental Protection Agency's (EPA) actions from the Ninth Circuit Court of Appeals. Committee for a Better Arvin asserted that EPA erred in approving California's plans to comply with air quality standards under the Clean Air Act (CAA). (9) The Ninth Circuit granted in part, denied in part, and remanded to EPA.

      Under the CAA, states are required to create a State Implementation Plan (SIP), which establishes measures for complying with National Ambient Air Quality Standards (NAAQS). (10) Areas that do not currently meet those standards are known as nonattainment areas. (11) Initially the proposed SIP is made open to the public, and after public notice and hearings, EPA is required to review the SIP and either approve it or reject it in part or in whole. (12) Committee for a Better Arvin challenged EPA's approval of revisions to California's 2007 SIP, and specifically challenged the revised NAAQS compliance plans for two pollutants: fine particulate matter and ozone. Although separate petitions were filed for each pollutant, the court addressed them collectively as both petitions were closely related and involved the same parties.

      The court first noted that Congress gave EPA general rulemaking authority with respect to the CAA. As a result, the court reviewed EPA's actions to determine whether the actions were reasonable or inconsistent with the CAA. The court found that, because the revised SIP did not contain requisite mobile emission standards, EPA violated the CAA by approving the revisions. However, the court also found that EPA did not violate the CAA by failing to require California to include other state mechanisms in the SIP and that the other control measures approved by EPA were enforceable.

      First, Committee for a Better Arvin argued that EPA's approval of California's SIP violated the CAA. California's SIP calculated necessary emission reductions and forecasts based on state adopted measures (waiver measures), which were not incorporated into the SIP. While the CAA provides a private right of action for citizens to enforce a SIP's provision through federal cotut, (13) only those provisions included in the SIP are subject to such enforcement. (14)

      EPA argued that the CAA does not require including waiver measures in the SIP due to EPA's longstanding policy of not requiring the inclusion of waiver measures in California's SIPs and because Congress ratified the longstanding policy in the CAA's savings clause. (15) The court rejected this argument and focused on the plain language of [section] 7410(a) of the CAA, which stated that SIPs "shall include" all emissions, control measures, means, and...

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