Ctr. for Biological Diversity v. Usepa ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 20-71196
DIVERSITY; CENTER FOR
ENVIRONMENTAL HEALTH, EPA No.
EPA-R09-OAR-2018-0562
Petitioners,
v. MEMORANDUM*
U.S. ENVIRONMENTAL PROTECTION
AGENCY; MICHAEL S. REGAN,
Administrator, United States Environmental
Protection Agency,
Respondents.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted March 8, 2021
San Francisco, California
Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
The Center for Biological Diversity and the Center for Environmental
Health (collectively, “Petitioners”) petition for review of a final rule issued by the
Environmental Protection Agency (“EPA”) that approved a plan to control ozone
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
emissions in Imperial County, California. We have jurisdiction pursuant to 42
U.S.C. § 7607(b)(1), and we deny the petition.
Located along the U.S.-Mexico border, Imperial County is home to
approximately 184,000 people and a thriving agriculture industry. Just across the
southern border lies Mexicali, Mexico, a major metropolitan area and industrial
hub with over one million residents. The county and Mexicali share an “airshed,”
meaning that air pollution is freely and routinely transported between them.
In 2012, EPA designated Imperial County as a “nonattainment area” under
the 2008 National Ambient Air Quality Standards (“NAAQS”) for ozone. See 77
Fed. Reg. 30,088, 30,099 (May 21, 2012). EPA classified the area as “Marginal,”
or the lowest nonattainment classification level. Id. Consequently, California was
required to demonstrate—through revisions to its state implementation plan
(“SIP”) for the 2008 ozone NAAQS—that the county would attain the NAAQS by
July 20, 2015. In 2016, EPA determined that the county had not attained the
NAAQS, reclassified the area as the next most serious nonattainment level
“Moderate,” and required California to formulate a SIP that would attain the
NAAQS by July 20, 2018. See 81 Fed. Reg. 26,697, 26,698-99 (May 4, 2016).
California submitted demonstrations indicating that the county would attain
the NAAQS by the 2018 deadline but for emissions from Mexico, and that EPA
should therefore approve the state’s plan revisions under the Clean Air Act
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section 179B, titled “[i]nternational border areas.” 42 U.S.C. § 7509a(a). Section
179B contains two relevant provisions. First, section 179B(a) directs EPA to
approve SIP revisions that meet all applicable statutory requirements except “a
requirement that such . . . revision demonstrate attainment and maintenance” of the
NAAQS by the attainment date, so long as EPA determines that the SIP revision
would be adequate to “attain and maintain” the NAAQS “but for emissions
emanating from outside of the United States.” Id. § 7509a(a). Second, section
179B(b) of the Act exempts nonattainment areas from reclassification to a more
severe category of nonattainment if a state establishes that the area would have
attained the ozone NAAQS but for international emissions. Id. § 7509a(b).
California contended that both provisions should be applied to its SIP revisions for
Imperial County.
On November 1, 2019, EPA issued a proposed rule to approve California’s
revised SIP submissions for Imperial County under both subsections of
section 179B(a). See 84 Fed. Reg. 58,641, 58,665 (Nov. 1, 2019).1 Under the
proposed rule, California would keep its “Moderate” nonattainment status, and
therefore would remain subject to various pollution control requirements. 84 Fed.
Reg. at 58,641. Petitioners submitted comments arguing, among other things, that
1
This determination was technically forward looking to the 2018 attainment
date, but it appears to have been delayed for reasons unrelated to this litigation.
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the terms “maintenance” and “maintain” in section 179B(a) require the county to
demonstrate that the SIP would achieve compliance with the NAAQS beyond the
attainment date but for international emissions, and that it is not enough to project
compliance until the attainment date. On February 27, 2020, EPA issued a final
rule approving California’s revised SIP. See 85 Fed. Reg. 11,817, 11,818-19 (Feb.
27, 2020). In response to Petitioners’ comments, EPA declined to interpret the
terms “maintenance” and “maintain” in section 179B(a) and explained that even
Petitioners’ preferred interpretation would be satisfied by California’s SIP because
extra-record data confirmed that ozone emissions in Imperial County would
decline until 2030. 85 Fed. Reg. at 11,819-21. This petition for review followed.
We review EPA’s actions approving or disapproving SIP submissions under
the “general standard of review for agency actions” set forth in the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701-06. Latino Issues F. v. EPA, 558 F.3d
936, 941 (9th Cir. 2009). “Under the APA, we consider whether . . . EPA’s action
was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.”’ Id. (quoting 5 U.S.C. § 706(2)(A)).
1. We need not address Petitioners’ arguments about the proper
interpretation of the terms “maintain” and “maintenance” in section 179B(a)
because, even assuming Petitioners’ preferred interpretation, EPA’s approval of the
SIP was not arbitrary, capricious, or an abuse of discretion.
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2. EPA did not violate the APA’s notice requirements by relying on data in
the final rule that was not cited in the proposed rule. “An agency . . . may use
‘supplementary data, unavailable during the notice and comment period, that
expands on and confirms information contained in the proposed rulemaking and
addresses alleged deficiencies in the pre-existing data, so long as no prejudice is
shown.’” Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006)
(quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1402 (9th Cir.
1995)). In the proposed rule, EPA explained that California’s modeling
sufficiently demonstrated declining ozone emissions in the county, such that
domestic emissions would fall below the 2008 ozone NAAQS by the 2018
attainment date. 84 Fed. Reg. at 58,653-55. EPA further noted that other data
“support[ed] and corroborat[ed] the modeling,” including California’s analyses of
“long-term downward trends” in Imperial County’s ozone emissions. 84 Fed. Reg.
at 58,654. EPA’s use of extra-record data to examine emissions further into the
future in the final rule merely “confirm[ed] and expand[ed] on” the data that
showed the county’s ozone emissions declining, “providing additional grounds for
the well-supported conclusions in the [proposed rule].”2 Kern Cnty. Farm Bureau,
450 F.3d at 1079.
2
Petitioners have also failed to show prejudice. Although Petitioners allege
that they would have “disputed the accuracy” of some of the supplemental data on
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3. EPA did not violate section 179B(a) by relying on information that was
not submitted by California. Nothing in the Clean Air Act or our caselaw indicates
that EPA must limit its analysis under section 179B(a) to data provided in
California’s submissions. To the contrary, EPA regulations indicate that the
agency has broad discretion to determine how best to evaluate section 179B
demonstrations. See, e.g., 78 Fed. Reg. 34,178, 34,205 (June 6, 2013) (“EPA has
historically evaluated [section 179B] demonstrations on a case-by-case basis,
based on the individual circumstances, the classification of the area and the data
provided by the submitting state.”).
4. EPA’s approval of the SIP was not arbitrary or capricious. According to
Petitioners, EPA failed to adequately explain how it could address Imperial
County’s emissions if they worsen in the future. We reject this argument for two
reasons. First, EPA discredited Petitioners’ concern by determining that Imperial
County’s future emissions would continue to decline through 2030. Nothing in the
record suggests that Imperial County’s domestic emissions will rise vis-à-vis
Mexico’s, or that Imperial County’s total emissions will rise such that Imperial
the theory that California undercounts emissions from agricultural soils, Petitioners
cite no authority to support this allegation. Furthermore, Petitioners do not explain
why they did not raise such concerns in their comments on the proposed rule, in
which EPA relied on emissions data submitted by California. Petitioners’
allegations are thus too speculative to demonstrate that they were prejudiced by
EPA’s use of extra-record data in the proposed rule.
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County would no longer be able to attain the 2008 NAAQS but for international
emissions.
Second, EPA correctly noted in the final rule that it may exercise its
authority to call for plan revisions pursuant to 42 U.S.C. § 7410(k)(5) “if domestic
emissions were to increase such that the nonattainment problem were to be
exacerbated.” 85 Fed. Reg. at 11,821. California must continue to collect and
report air quality monitoring data under existing regulations. See 40 C.F.R.
§ 58.10 (2020). Using this data, EPA could determine that the SIP for Imperial
County no longer complies with section 179B, and it could require plan revisions,
as necessary. See Mont. Sulphur & Chem. Co. v. U.S. EPA, 666 F.3d 1174, 1184-
86 & n.3 (9th Cir. 2012).
Petitioners also argue that EPA’s final rule was arbitrary and capricious
because EPA failed to explain adequately its reasoning as to the following issues:
(1) why EPA considered data for PM10 to be an appropriate substitute for ozone
data; and (2) why additional photochemical modeling and estimations of future
Mexican emissions should not have been required here. We owe significant
deference to the agency when reviewing technical analyses. Lands Council v.
McNair, 629 F.3d 1070, 1074 (9th Cir. 2010). EPA adequately explained its
reliance on data for PM10 in the final rule, see 85 Fed. Reg. at 11,820, and nothing
in the law or the administrative record suggests that EPA’s decision not to cite
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additional photochemical modeling or estimations was unreasonable. We therefore
hold that EPA’s final rule was not arbitrary or capricious.
PETITION DENIED.
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