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


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[1] (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[2] (APA).[3] 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.”[4] 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 regarding their third claim and refused to defer to EPA’s interpretation that the contingency measures requirement could be satisfied by measures implemented wholly in the past.

Under the CAA, Congress designated Maricopa County, Arizona, as a “moderate” PM-10 nonattainment area in 1990. After missing the first deadline by which it was to be in attainment of the National Ambient Air Quality Standards (NAAQS), EPA reclassified Maricopa County as a “serious” PM-10 nonattainment area. Under the CAA, “serious” nonattainment status required Arizona to prepare a SIP demonstrating Arizona’s plan to meet the PM-10 NAAQS by 2001, and to explain how Arizona would implement the best available control measures (BACM) for PM-10.[5] In 2000, Arizona applied for a five-year extension to meet the PM-10 NAAQS and simultaneously submitted its required SIP. Arizona’s SIP included the MSM, in addition to the BACM, for controlling PM-10 as required in order to be granted an extension.[6] In 2002, EPA granted the extension and approved Arizona’s 2000 SIP, stating that the SIP met the CAA’s BACM and MSM standards. After Maricopa County failed to meet the NAAQS by the 2006 extended deadline, Arizona had twelve months to submit required revisions to its SIP that would ensure achievement of the NAAQS for PM-10, ensure an annual 5% reduction in PM-10 for Maricopa County, and contain adequate contingency measures.[7]

Arizona submitted the requisite SIP revisions in 2007. After EPA proposed to disapprove of the revisions due to an agricultural control measure that failed the BACM standard, Arizona withdrew its SIP in 2011, and ultimately failed to make the required SIP revisions on schedule. As a result, the CAA required Arizona to prepare further SIP revisions, which it submitted in 2012.[8] The 2012 revised SIP (known as the Five Percent Plan) contained previously proposed control measures, as well as new control measure for dust, but excluded the agricultural control measure previously found to be inadequate by EPA. The Five Percent Plan also contained various contingency measures, all of which had already been accomplished and were in use throughout Arizona.

Arizona also acknowledged a number of PM-10 exceedances beyond what the NAAQS required in 2011 and 2012. However, Arizona asserted that the exceedances should be deemed “exceptional events,” specifically high wind dust events, which would result in their exclusion from the NAAQS compliance determination. In 2014, EPA approved the Five Percent Plan.[9] EPA also concluded that each of the exceedances met the definition of “exceptional event” because the exceedances were not “reasonably controllable or preventable” and because Arizona had “reasonable controls” in place for anthropogenic sources of dust.[10] Excluding the 135 high wind exceedances, EPA found that Maricopa County had attained the PM-10 NAAQS. EPA also determined that Arizona’s previously implemented contingency measures satisfied the CAA’s contingency measure requirement.[11] Finally, EPA’s 2014 Final Rule approving the Five Percent Plan included EPA’s response to comments previously submitted by Petitioners in this case. In July 2014, after EPA dismissed all of Petitioners’ arguments made in comments, Petitioners filed for review of the 2014 Final Rule in the Ninth Circuit.

The Ninth Circuit exercised its jurisdiction encompassing petitions for review of EPA actions in approving or promulgating any SIP.[12] In reviewing SIP approvals, the APA requires the Ninth Circuit to uphold the action unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[13]

Petitioners first alleged that EPA acted contrary to the CAA and abused its discretion in failing to require Arizona to perform and include updated analyses of BACM and MSM in the Five Percent Plan. Second, Petitioners alleged that EPA abused its discretion and acted contrary to law—departing from EPA’s own guidance without offering a reasonable explanation—by excluding 135 exceedances from the monitoring data as “exceptional events,” and by failing to adequately address the controls in upwind areas. Finally, Petitioners argued that EPA violated the CAA by allowing Arizona to satisfy the CAA’s “contingency measures” requirement with measures that were already in use in Arizona.[14]

The Ninth Circuit first held that, given the lack of any contrary statutory command in the CAA and given EPA’s reasonable explanation for its approach, EPA did not abuse its discretion or act contrary to law by declining to require updated demonstrations of BACM or MSM in the Five Percent Plan. The court looked to the CAA and found no language requiring EPA to reassess a state’s controls in each SIP submission, and thus found that EPA’s approach was consistent with the statute.

Next, the Ninth Circuit held that EPA reasonably interpreted the “exceptional events” exclusion and sufficiently provided a reasonable explanation as to why Maricopa County had the requisite reasonable controls for windblown dust when EPA excluded the 135 PM-10 exceedances from Maricopa County’s NAAQS monitoring data.[15] Contrary to Petitioners’ argument, the court found that nothing required EPA to review and approve windblown dust control measures as BACM before determining that dust is reasonably well controlled in a given area. The court deferred to EPA’s scientific judgment that the dust source exceedances were reasonably well controlled and were thus excludable as “exceptional events.”

The Ninth Circuit also held that EPA did not abuse its discretion by approving Arizona’s description of upwind sources, or by concluding that the anthropogenic dust sources outside of Maricopa County but still within Arizona were reasonably well controlled. Dismissing Petitioners’ argument that Arizona did not identify all contributing emission sources outside the Maricopa Area, the court found that Arizona had provided enough information to make EPA’s conclusions reasonable. Additionally, the Ninth Circuit found that EPA provided a reasoned explanation for finding the anthropogenic dust sources outside of the County to be reasonably well controlled.

Finally, the Ninth Circuit held that EPA did violate the CAA by approving, as contingency measures, processes that Arizona had previously implemented. The Ninth Circuit relied on the CAA’s plain meaning, rather than deferring to EPA’s interpretation allowing past contingency measures to satisfy the contingency measure requirement. The court determined that the plain meaning required the contingency measures in the SIP to be undertaken in the future, triggered only by a state’s failure to reasonably progress toward attainment or to attain the NAAQS by the prescribed deadline. Despite EPA’s argument that its interpretation was consistent with the CAA’s policy goals, the Ninth Circuit refused to defer to EPA and sided with Petitioners on this final claim.

Ultimately, the Ninth Circuit denied the petition as to the Petitioners’ first two claims. The court first held that EPA did not act contrary to law by failing to require that Arizona include updated analyses of BACMs and MSMs in its Five Percent Plan. The court next held that EPA did not abuse its discretion by excluding 135 PM-10 exceedances from Arizona’s monitoring data as “exceptional events.” Finally, the Ninth Circuit remanded Petitioners’ final claim to EPA for reconsideration of the inadequate contingency measures portion of the Five Percent Plan.




Footnotes    (↵ returns to text)

  1. 42 U.S.C. §§ 7401–7671q.
  2. 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).
  3. Id. § 706(2)(A); 42 U.S.C. §§ 7513(e), 7513a(b)(1)(B).
  4. 40 C.F.R. § 50.14(b)(1).
  5. 42 U.S.C. §§ 7513(b), 7513(c)(2), 7513(e), 7513a(b).
  6. Id. § 7513(e).
  7. Id. §§ 7502(c)(9), 7513a(d).
  8. See Approval and Promulgation of Implementation Plans—Maricopa County PM-10 Nonattainment Area; Five Percent Plan for Attainment of the 24-Hour PM-10 Standard, 79 Fed. Reg. 7118, 7119 (Feb. 6, 2014) (to be codified at 40 C.F.R. pt. 52).
  9. Approval and Promulgation of Implementation Plans—Maricopa County PM-10 Nonattainment Area; Five Percent Plan for Attainment of the 24-Hour PM-10 Standard, 79 Fed. Reg. 33,107 (June 10, 2014).
  10. EPA concluded reasonable controls were in place by relying on the satisfaction of the BACM and MSM requirements in Arizona’s 2000 SIP, approved 12 years prior in 2002.
  11. 42 U.S.C. §§ 7619(b)(1)(A), 7502(c)(9).
  12. Id. § 7607(b)(1).
  13. APA, 5 U.S.C. § 706(2)(A) (2012).
  14. 42 U.S.C. § 7502(c)(9).
  15. See Auer v. Robbins, 519 U.S. 452, 461 (1997).
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