Home » Case Summaries » 2004 » Vigil v. Leavitt


Vigil v. Leavitt


Several Phoenix residents, Martha Vigil, Andy Blackledge, and Robin Silver (Petitioners), petitioned for review of a final rule promulgated by the Environmental Protection Agency (EPA) implementing the Clean Air Act (CAA).[1] The rule approved the State of Arizona’s state implementation plan (SIP) for airborne particulate matter in the Phoenix area, and granted a five-year extension of the attainment deadline to 2006. On review, the Ninth Circuit held that EPA’s concurrence with Arizona’s rejection of reformulated diesel fuelcommonly known as CARB dieselfor use in Phoenix-area vehicles was arbitrary and capricious, and remanded this portion of EPA’s decision for further consideration. The Ninth Circuit, however, affirmed EPA’s approval of Arizona’s general permit rule for agricultural emissions of airborne particulate matter. The Ninth Circuit also remanded EPA’s decision to granting the five-year extension of the attainment deadline for further analysis in conjunction with consideration of the CARB diesel fuel issue.

The CAA authorizes EPA to establish national ambient air quality standards for various pollutants.[2] EPA has identified airborne particulate matter with a diameter of ten micrometers or less, known as PM-10, as a regulated air pollutant.[3] The CAA amendments designated non-attainment areas for PM-10 levels.[4] State-prepared plans created for “moderate” non-attainment areas must include assurances that reasonably available control measures will be implemented and that the area will reach attainment by the end of 1994 for both twenty-four hour PM-10 standards and annual PM-10 standards.[5] Areas not reaching attainment by this deadline were reclassified as serious non-attainment areas.[6] State-prepared plans for serious non-attainment areas had to implement not just reasonable, but also best available control measures (BACMs),[7] and assure the area would reach attainment by the end of 2001.[8] The amendments authorized an extension of the 2001 deadline under various conditions. Among these conditions was a finding that the state plan incorporated “the most stringent measures [MSMs] that are included in the implementation plan of any state or are achieved in practice in any state, and can be feasibly implemented in the area.”[9]

This case is the Ninth Circuit’s third concerning PM-10 standards in the Phoenix metropolitan area.[10] Prior events included EPA’s rejection of Arizona’s first moderate area PM-10 state implementation plan in 1994, EPA’s approval of Arizona’s revised plan in 1995, and a Ninth Circuit decision overturning EPA’s approval. Subsequently, in 1996, EPA determined that Arizona did not comply with the 1994 statutory deadline and thus reclassified the state as a serious PM-10 non-attainment area. Over the next six years EPA and Arizona worked on plans which culminated in EPA’s 2002 final approval of Arizona’s state implementation plan for the twenty-four hour PM-10 standards and annual PM-10 standards. EPA specifically found that Arizona’s proposed standards met the BACM requirement and the MSM standard. EPA also granted Arizona’s request to extend the deadline for attainment of these standards from 2001 to 2006.

The Petitioners filed for Ninth Circuit review of EPA’s final approval. Specifically, they challenged EPA approval of: 1) Arizona’s general permit rule for agricultural PM-10 emissions, arguing that the rule did not constitute either BACM or MSM; 2) Arizona’s refusal to require use of CARB diesel fuels to control emissions, arguing again that the state did not implement either BACM or MSM; and 3) extension of the attainment deadline, which, they argued, constituted an abuse of discretion.

The CAA grants the courts of appeals jurisdiction to review EPA’s approval of a state implementation plan.[11] The CAA, however, does not specify a standard of review. The Ninth Circuit reviewed EPA’s actions under the Administrative Procedure Act,[12] specifically whether EPA’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[13]

The court first considered the level of deference to be afforded EPA’s decision. Congress gave EPA general rulemaking authority under the CAA, including the authority to promulgate such terms as “reasonably available control measures,”[14] “best available control measures,”[15] and “most stringent measures.”[16] However, EPA has never formally adopted rules defining these terms.[17] Instead, EPA provides only informal guidance in the form of “preliminary interpretations” that “do not bind the States and the public as a matter of law.”[18] Thus, Chevron‘s highly deferential standard, given to construction of an ambiguous statute adopted through formal rulemaking, was in this situation inappropriate.[19] Instead, the court granted EPA’s preliminary interpretations Skidmore deference, finding that the agency’s interpretations are “entitled to respect.”[20] The Ninth Circuit noted its conclusions would have been the same under either standard of deference.

On the substantive issues, the Ninth Circuit first turned to the issue of Arizona’s General Permit Rule for Agriculture. Petitioners objected to a provision that required each commercial farmer to implement only one best management practice (BMP) from each of three categories of such practices, thirty-four possible BMPs were spread among the three categories. Petitioners argued this requirement did not qualify as the BACM required for serious PM-10 non-attainment areas, reasoning that the state had determined all thirty-four BMPs to be feasible. Thus, requiring more than one BMP had to be better than the base requirement of one BMP per category.

The Ninth Circuit rejected Petitioners’ argument, finding that Arizona’s plan and EPA’s approval were grounded on EPA’s reasonable interpretation of the CAA. Arizona’s decision, accepted by EPA, to require implementation of only one BMP per category was based on a cost-benefit analysis of many regional variables such as climate, soil, water availability, and proximity to urban centers. The analysis concluded that these variables, along with the costs associated with implementing multiple BMPs, did not allow imposition of uniform requirements on commercial farmers, but rather, suggested the flexible approach adopted in Arizona’s plan. The Ninth Circuit concluded that EPA had reviewed Arizona’s explanation with sufficient scrutiny and thus EPA’s approval was not arbitrary or capricious.

Next, the Ninth Circuit reviewed EPA’s determination that Arizona’s General Permit Rule for Agriculture included “the most stringent measures that are included in the implementation plan of any state, or are achieved in practice in any state, and can be feasibly implemented in the area.”[21] The comparative inquiry into MSMs required two determinations: 1) whether any other regional plan contained more stringent requirements than the Arizona plan, and 2) if so, whether the more stringent requirements were technologically and economically feasible to implement within Arizona.[22] Petitioners asserted that the MSM standard was not met because Arizona’s plan did not adopt measures similar to those adopted by California in the South Coast Air Quality Management District (South Coast). The two programs differed in that the Arizona plan required implementation of fewer BMPs than the South Coast plan, and the Arizona plan did not mandate cessation of tilling on high wind days.[23] The Ninth Circuit noted that Arizona was bound by the CAA to adopt the South Coast standards only if they could “feasibly be implemented in the area.”[24] The Ninth Circuit upheld EPA’s conclusion that various factors relating to the differences in topography, soil conditions, crops, irrigation methods, and wind conditions made implementation of the South Coast standards infeasible in Arizona.

The Ninth Circuit then reviewed Petitioners’ challenge to Arizona’s decision to reject the use of CARB diesel, a reformulated diesel fuel required for use in South Coast. Both the court and EPA decided that Arizona’s plan properly treated diesel emissions as a significant source of pollutants, and adopted a number of programs that specifically addressed diesel emissions. Arizona, however, provided only one reason for rejection of CARB diesel: lack of information on whether an adequate supply existed for the Arizona market, and excessive fuel costs if supplies were short. Reviewing the plan, EPA did not address Arizona’s concerns regarding the cost of CARB diesel, but approved the plan anyway as a BACM on the grounds that Arizona’s plan was among the most stringent and extensive programs in the nation.

When considering Arizona’s rejection of CARB diesel under the MSM standard, EPA determined that use of the fuel would only minimally reduce PM-10 emissions and “would not contribute to expeditious attainment of the 24-hour [PM-10] standard.”[25] Arizona, however, did not justify its rejection of CARB diesel with this argument, the rationale emanated entirely from EPA. In light of the fact that the EPA and Arizona rationales for rejection of CARB diesel were dissimilar, the Ninth Circuit found EPA’s explanation of its reasoning inadequate, and, therefore, arbitrary and capricious. The court remanded the issue for EPA’s further consideration as to whether Arizona’s rejection was consistent with either the best available control measures or the most stringent measures.

Finally, the court reviewed Petitioners’ claim that EPA abused its discretion in granting the five-year extension. EPA may grant an extension if the state satisfies the MSM standard, if attainment by the original deadline is impracticable, and if the state has complied with all implementation requirements and commitments.[26] Petitioners argued the EPA’s decision was impermissible for two reasons. First, Petitioners asserted that if all the previously suggested measures were put into effect, Arizona could attain PM-10 standards. Second, Petitioners argued that Arizona’s past failure to meet CAA standards and deadlines made the state ineligible for the extension.

The court had already determined that EPA acted arbitrarily in finding Arizona had achieved MSMs when it rejected the CARB diesel fuel requirements, but acted reasonably in finding Arizona’s agricultural PM-10 standards consistent with the most stringent measures test. The Ninth Circuit went on to reject Petitioners’ arguments that Arizona was ineligible for an extension. Specifically, the court found Petitioners’ second assertion to be an “unreasonable” reading of the law, because a state that had met the previous requirements would not need an extension.[27] Nevertheless, the court remanded EPA’s grant of the extension to 2006 for further consideration together with the CARB diesel fuel issue and its impact on the MSM determination.

In summary, the Ninth Circuit remanded the CARB diesel fuel rejection for further analysis by EPA. The court also remanded the issue of the five-year extension, contingent upon the sufficient explanation of the EPA’s rationale for rejecting a CARB diesel requirement. Finally, the court upheld EPA’s decision to approve Arizona’s general permit rule for agricultural PM-10 standards.

[1] Clean Air Act, 42 U.S.C. §§ 7401-7671q (2000).

[2] Id. §§ 7408(a), 7409(a).

[3] National Primary and Secondary Ambient Air Quality Standards, 40 C.F.R. § 50.6 (2000).

[4] 42 U.S.C. § 7407(d)(4)(b) (2000).

[5] Id. § 7513(a).

[6] Id. § 7513(b)(2).

[7] Id. § 7513a(b)(1)(B).

[8] Id. § 7513(c)(2).

[9] Id. § 7513(e).

[10] See Ober v. United States Envtl. Prot. Agency, 84 F.3d 304, 309 (9th Cir. 1996) (finding that the state must independently examine and implement “‘reasonably available control measures’ targeting the 24-hour standard” even if the state showed that it could not feasibly meet the standards for allowable annual levels of PM-10); Ober v. Whitman, 243 F.3d 1190, 1198 (9th Cir. 2001) (finding that EPA could designate some sources of PM-10 as de minimis).

[11] 42 U.S.C. § 7607(b)(1) (2000).

[12] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[13] Id. § 706(2)(A).

[14] 42 U.S.C. § 7513a(a)(1)(C) (2000).

[15] Id. § 7513a(b)(1)(B).

[16] Id. § 7513(e).

[17] Vigil v. Leavitt, 381 F.3d 826, 834 (9th Cir. 2004).

[18] Id. (quoting State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clear Act Amendments of 1990, 59 Fed. Reg. 41,998, 41,999 (Aug. 16, 1994)).

[19] Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984).

[20] Vigil, 381 F.3d at 835 (referencing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

[21] 42 U.S.C. § 7513(e) (2000).

[22] Vigil, 381 F.3d at 839 (construing Clean Air Act, 42 U.S.C. § 7512(e) (2000)).

[23] Id.

[24] Id. (quoting 42 U.S.C. § 7513(e) (2000)).

[25] Id. at 845 (quoting Approval and Promulgation of Implementation Plans; Arizona-Maricopa County PM-10 Nonattainment Area; Serious Area Plan for Attainment of the PM-10 Standards, 67 Fed. Reg. 48,718, 48,725 (July 25, 2002)).

[26] § 7513(e).

[27] Vigil, 381 F.3d at 846.

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