(Overview).

• Author: Illowsky, Dara
• Position: Ninth Circuit Environmental Review

The 2021-2022 Ninth Circuit Environmental Review summarizes thirty-one decisions by the United States Court of Appeals for the Ninth Circuit issued between January and December 2021. All of the summarized opinions concern cases and questions of law impacting natural resources, energy, and the environment. Several of the summarized opinions do not strictly concern "environmental law," but rather were included for their importance in informing an intersectional understanding of environmental law and how that discipline interacts with others, particularly labor rights, Federal Indian Law, and corporate accountability. Additionally, the Ninth Circuit Environmental Review features two Chapters authored by Ninth Circuit Review members that discuss important topics stemming from recent cases out of the Ninth Circuit.

In the first Chapter, Jessica Holmes explores the use of aggregate litigation devices to pursue environmental enforcement, protection, and justice. The Chapter begins by providing an overview of aggregation devices and their uses generally, followed by an exploration of examples of aggregate litigation that have contributed to the goals of the environmental movement, including the recent Ninth Circuit ruling in In re Volkswagen "Clean Diesel" Marketing, Sales Pratices, & Products Liability Litigation, 2 F.4th 1199 (9th Cir. 2021). Finally, the Chapter identifies obstacles any practitioner interested in pursuing environmental aggregate litigation is likely to encounter, and offers solutions. In so doing, this Chapter responds to the need for innovation and exploration of potential new avenues for addressing our current climate, biodiversity, and environmental justice crises, and helps to guide practitioners in an area of law unfamiliar to many.

In the second Chapter, Gregory Allen explores the development of the clear statement rule, which requires that if a statute is to waive sovereign immunity, the statutory text must unequivocally express Congress's intent that immunity be waived. The chapter then attempts to predict how each Supreme Court Justice (1) would rule if the issue of waiver of sovereign immunity for punitive fines under the Clean Air Act were to come before the Court. The Chapter concludes that the current conservative-leaning Court would most likely apply the clear statement rule strictly, just as the Ninth Circuit applied the rule to the Clean Water Act in Deschutes River Alliance v. Portland General Electric Co., 1 F.4th 1153 (9th Cir. 2021). The Chapter then argues that such a strict application of the clear statement rule does not adequately protect natural resources, allowing government operators of polluting facilities to escape accountability. Its thorough exploration of the history of the clear statement rule and the ideologies of current Supreme Court justices can provide practitioners with a helpful roadmap for potential litigation strategies in the realm of pollution control statutes.

The Ninth Circuit Review is made possible through the hard work of its five members who are selected from the Environmental Law member base each year. The case summaries that appear here are the result of their commitment, even in the face of a continuing global pandemic, to ensuring that practitioners, advocates, fellow law students, and anyone with a related interest receive an accurate review of the state of environmental law in the Ninth Circuit.

Thank you for reading!

Dara Illowsky

2021-2022 NINTH CIRCUIT

ENVIRONMENTAL REVIEW EDITOR

1. ENVIRONMENTAL QUALITY

   1. Clean Air Act (CAA)

      1. Sandra Bahr v. Michael S. Regan, 6 F.4th 1059 (9th Cir. 2021)

         City of Phoenix residents Sandra L. Bahr, Jeanne Lunn, and David Matusow (collectively, Bahr) filed a petition for judicial review of the Environmental Protection Agency's (EPA) (2) determination that the Phoenix nonattainment area (NAA) had attained the national ambient air quality standard (NAAQS) for ozone by its 2018 deadline in compliance with the Clean Air Act (CAA). (3) The Ninth Circuit heard Bahr's claims directly, (4) reviewed them under an arbitrary and capricious standard of review, and ultimately denied the petition, holding that EPA did not act arbitrarily and capriciously when it concluded certain ozone emissions were caused by a wildfire and could thus be excluded from the NAAQS ozone calculations.

         Under the CAA, a NAA is an area where certain pollutants are above NAAQS. NAAs are subject to stringent regulations and attainment deadlines, as outlined in a State Implementation Plan (SIP). A SIP is an EPA approved blueprint for how a state will achieve attainment that identifies contingency measures in the event of nonattainment. When the Phoenix NAA failed to achieve ozone attainment by its 2015 deadline, EPA imposed more stringent requirements upon it as well as a new attainment date of July 20, 2018. On June 17, 2015, a wildfire approximately 300 miles away in California began burning, and three days later, six ozone monitors in the Phoenix NAA recorded abnormally high levels of ozone in excess of the NAAQS. Without those exceedances, Arizona would have achieved its 2018 attainment deadline.

         Pursuant to EPA's Exceptional Events Rule that was in place at the time, (2007 Rule), if a state could show that an uncontrollable, exceptional event was the "but for" cause of the exceedance, as well as show that the exceedance was in excess of normal historical fluctuations, then that monitoring data was to be excluded from its NAAQS calculations. Accordingly, on September 27, 2016, Arizona Department of Environmental Quality (ADEQ) submitted to EPA a demonstration of clear causal connection between the wildfire emissions and the exceedances to exclude the exceedances from its NAAQS calculations.

         Three days later, EPA reissued its Exceptional Events Rule, (2016 Rule), removing the provisions about exceedances being in excess of normal historical fluctuations and the event being the "but for" cause of the exceedance, but keeping a requirement to show clear, causal connection. ADEQ followed EPA guidance for demonstration of casual connection with wildfires, resubmitted its demonstration (twice), and EPA formally concurred with the exclusions in May 2019. In its concurrence, EPA applied the 2016 Rule even though the exceedances occurred while the 2007 Rule was in effect. A rule has an impermissible retroactive effect when it impacts any vested rights, creates any new obligations, or otherwise impacts any regulated party's interest in fair notice, reasonable reliance, or settled expectations. (5) With the exceedances thus excluded, EPA proposed to issue an Attainment Determination (6) for the Phoenix NAA's July 20, 2018 deadline, as well as to suspend the State Implementation Plan (SIP) nonattainment contingency measures. Bahr commented on the proposed Attainment Determination, and shortly thereafter, EPA finalized and issued it.

         Bahr first argued that EPA's application of the 2016 Exceptional Events Rule had an impermissibly retroactive effect because the exceedances occurred in 2015 while the 2007 Rule was still in effect. The Ninth Circuit began by observing that Bahr failed to exhaust administrative remedies by not raising the argument in her comment before the agency. The Ninth Circuit noted that the CAA states that objections must be raised in the public comment to be raised during judicial review, (7) but that the Ninth Circuit also considers issues raised with sufficient clarity. Here, the Ninth Circuit found that Bahr's comment neither expressly nor impliedly contested EPA's use of the 2016 Rule. The Ninth Circuit found that Bahr's failure to clearly mention the two prongs of the 2007 Rule (8) showed that she did not adequately present the issue to the agency, and thus failed to exhaust the issue.

         The Ninth Circuit also held on the merits that EPA did not violate the presumption against retroactivity because EPA's application of the 2016 Rule did not impact any vested rights, create any new obligations, or otherwise impact any regulated party's interest in fair notice, reasonable reliance, or settled expectations. The Ninth Circuit reasoned that the mere fact that the events occurred while the old rule was in effect did not make the application of the new rule impermissibly retroactive. Rather, the test is whether application of the new rule impacts a vested right. Here, Bahr's only right was the right to clean air, not to the enforcement of a particular rule. The Ninth Circuit determined that EPA changed its rule in accordance with a more refined or matured scientific understanding, and that Bahr offered neither evidence of reliance from regulated parties nor of impact on her right to clean air. Thus, the Ninth Circuit ruled that EPA's application of the 2016 Rule was not impermissibly retroactive.

         Bahr next argued that EPA's finding of a clear causal relationship between the wildfire and the exceedances was arbitrary and capricious, even under the 2016 Rule. The Ninth Circuit rejected Bahr's argument and deferred to EPA's expertise because the determination involved scientific issues of fact. Under EPA's Guidance on the Preparation of Exceptional Events Demonstrations for Wildfire Events that May Influence Ozone Concentrations, ADEQ needed to meet three elements to show causal connection between the emissions and the exceedances: (1) the emissions were transported to the monitors; (2) the emissions affected the monitors; and (3) the emissions caused the exceedances. Bahr argued that the data was inadequate to show dispositively that the wildfire caused the exceedances, but the Ninth Circuit held that absent any alternative technical data from Bahr showing absolutely no rational connection between the evidence and the exceedances, EPA was entitled to deference and thus its determination was not arbitrary and capricious.

         Lastly, Bahr argued that EPA violated the CAA when it suspended the SIP's contingency measures after making the...