Dalton Trucking, Inc. v. Usepa ( 2021 )

FILED
NOT FOR PUBLICATION
FEB 10 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALTON TRUCKING, INC.; LOGGERS No. 13-74019
ASSOCIATION OF NORTHERN
CALIFORNIA, INC.; ROBINSON No.
ENTERPRISES, INC.; NUCKLES OIL Environmental Protection Agency
CO., INC., DBA Merit Oil Company;
CALIFORNIA CONSTRUCTION
TRUCKING ASSOCIATION, INC.; MEMORANDUM*
CONSTRUCTION INDUSTRY AIR
QUALITY COALITION; DELTA
CONSTRUCTION COMPANY;
SOUTHERN CALIFORNIA
CONTRACTORS ASSOCIATION, INC.;
RON CINQUINI FARMING; UNITED
CONTRACTORS,
Petitioners,
AMERICAN ROAD &
TRANSPORTATION BUILDERS
ASSOCIATION,
Petitioner-Intervenor,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; GINA MCCARTHY, in her
official capacity as Administrator of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
USEPA,
Respondents,
CALIFORNIA AIR RESOURCES
BOARD,
Respondent-Intervenor.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted January 22, 2021
Pasadena, California
Before: TALLMAN and IKUTA, Circuit Judges, and OLIVER,** District Judge.
Petitioners (collectively “Dalton”) petition for review of a Notice of
Decision whereby the Environmental Protection Agency (EPA) granted the request
by the California Air Resources Board (CARB) for authorization of its In-Use Off-
Road Diesel-Fueled Fleets Regulation (Fleet Requirements). See 78 Fed. Reg.
58,090 (Sept. 20, 2013). We have jurisdiction under 42 U.S.C. § 7607(b)(1), and
we deny the petition for review.
Under the Clean Air Act, the EPA “shall, after notice and opportunity for
public hearing, authorize California to adopt and enforce standards and other
**
The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
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requirements relating to the control of emissions from” specified nonroad vehicles
or engines “if California determines that California standards will be, in the
aggregate, at least as protective of public health and welfare as applicable Federal
standards.” 42 U.S.C. § 7543(e)(2)(A). However, “[n]o such authorization shall
be granted” if the EPA finds that (among other things) “California does not need
such California standards to meet compelling and extraordinary conditions,”
§ 7543(e)(2)(A)(ii) (referred to as the “needs test,” 78 Fed. Reg. at 58,100).
The EPA was not arbitrary and capricious in declining to find that
“California does not need such California standards to meet compelling and
extraordinary conditions,” § 7543(e)(2)(A)(ii), under the alternative version of the
needs test, which requires “a review of whether the Fleet Requirements are per se
needed to meet compelling and extraordinary conditions,” 78 Fed. Reg. at 58,103.
The EPA considered “the relevant factors,” Motor Vehicle Mfrs. Ass’n of U.S. v.
State Farm Mut. Auto. Ins. Co., Inc., 463 U.S. 29, 42–43 (1983), including
statewide air quality, 78 Fed. Reg. 58,104, the state’s compliance with federal
National Ambient Air Quality standards for ozone and PM2.5 on a statewide basis,
id. at 58,103–04, the statewide public health benefits, id. at 58,104, and the utility
of the Fleet Requirements in assisting California to meet its goals, id. at 58,110.
Contrary to Dalton’s argument, the EPA did not limit its review to two of
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California’s fourteen air quality regions. The EPA examined the relevant data
provided by CARB, and it articulated a “satisfactory explanation for its action
including a rational connection between the facts found and the choice made.” See
Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43 (cleaned up).
Because the EPA has conceded that it must apply the alternative version of
the needs test in this context, we need not address Dalton’s argument that the EPA
may not use the traditional version of the needs test, which requires a review of
whether California needs its standards in the aggregate to meet compelling and
extraordinary conditions, and therefore is easier to satisfy.1 We conclude,
however, that the EPA was also not arbitrary and capricious in declining to find
that “California does not need such California standards” under the traditional
version of the needs test. See 42 U.S.C. § 7543(e)(2)(A)(ii); 78 Fed. Reg. at
58,102.
We reject Dalton’s argument that because the EPA failed to give
stakeholders an opportunity to comment on its application of the alternative
version of the needs test, it committed a procedural error in issuing the Notice of
1
The question whether the alternative version of the needs test is an
appropriate interpretation of a provision of the Clean Air Act analogous to
§ 7543(e)(2)(A) is currently pending before the D.C. Circuit. Union of Concerned
Scientists v. Nat’l Highway Traffic Safety Admin., No. 19-1230 (D.C. Cir.).
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Decision. As required by the Clean Air Act, the EPA provided “notice and an
opportunity for public hearing” before issuing the Notice of Decision. See 42
U.S.C. § 7543(e)(2)(A); 77 Fed. Reg. 50,500, 50,502 (Aug. 21, 2012). The EPA
was free to use informal adjudication to make the determination required under
§ 7543(e)(2)(A), see Davis v. U.S. EPA, 348 F.3d 772, 785 (9th Cir. 2003), and
appropriately complied with the informal adjudication requirements imposed by
the Administrative Procedure Act in issuing the Notice of Decision. See 5 U.S.C.
§ 555; Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 655 (1990).
PETITION DENIED.2
2
With this disposition, the panel also GRANTS Dalton’s unopposed motion
to take judicial notice of three proposed exhibits attached to its supplemental brief.
See Dkt. No. 93.
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