Home » Case Summaries » 2011 » Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 638 F.3d 1183 (9th Cir. 2011)

 
 

Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 638 F.3d 1183 (9th Cir. 2011)

 

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The Natural Resources Defense Council, Inc. and other environmental groups (collectively, Petitioners)[1] sought review of a preliminary finding of the United States Environmental Protection Agency (EPA).[2] This finding validated a California state implementation plan (SIP) that controls motor vehicle emissions for milestone years 2009 and 2012. Petitioners argued that EPA’s adequacy finding was “arbitrary, capricious, or otherwise contrary to law.”[3] The United States Court of Appeals for the Ninth Circuit denied the petition for review, holding that EPA’s interpretation was reasonable and that the state is not required to demonstrate attainment for the limited purpose of approving milestone-year budgets.

The Clean Air Act (CAA) [4] requires EPA to determine national ambient air quality standards (NAAQS) for certain air pollutants that may injure the health or welfare of the public. Each state, divided into different “air quality control regions,” regulates NAAQS for each region.[5] Regions are classified in reference to each of the NAAQS as in attainment, nonattainment, or unclassifiable.[6] The CAA requires states to create a SIP to address attainment, maintenance, and enforcement of the NAAQS in each region.[7] States provide notice of the proposed SIP, set a hearing, and then submit the SIP to EPA for final approval.[8] Nonattainment regions have additional requirements, which include providing for attainment of the NAAQS by a specific deadline[9] and providing for “reasonable further progress” (RFP)[10] during interim years.

The SIP contains a section that describes strategies to control emissions and reduce ambient levels of pollution.[11] Emissions amounts are divided between motor vehicles and all other sources; the portion allocated to motor vehicles, defined as the “motor vehicle emissions budget.”[12] Among the emissions that EPA regulates is particulate matter, specifically PM-10 and PM-2.5.[13] The current case focused on PM-2.5 and the regulations EPA promulgated to explain the requirements for SIPs.[14] EPA defined a timeline regarding the RFP of a nonattainment area, with 2002 as the default baseline emission “inventory year” and 2009 and 2012 as the “milestone years.”[15] EPA requires that the states achieve linear progress to reduce emissions from the inventory year to the attainment year.[16]

Furthermore, federally funded transportation projects and plans must conform to the applicable SIP.[17] Although EPA has an affirmative responsibility to ensure that projects conform to the SIP, this responsibility clashes with EPA’s responsibility to approve a final SIP.[18] Specifically, EPA must initially approve “conformity” when a state submits their SIP for

approval, but EPA’s final approval of a SIP may not occur for some time after submission.[19] Addressing this logistical conflict, EPA promulgated the 1997 conformity rule (updated in 2004), which allowed EPA to quickly determine conformity after a cursory review of the motor vehicle emissions budget.[20] After evaluating the budgets based on six specified criteria, EPA makes an adequacy determination for the purpose of transportation conformity.[21] This allows projects and plans to proceed without final approval of the budget or the SIP. This adequacy determination is separate from EPA’s overall approval and is limited in scope.[22] 

The present petition concerns the South Coast Air Basin area, which EPA designated as a “nonattainment” area with respect to PM-2.5 in 2005.[23] In 2007, the California Air Resources Board submitted a SIP to EPA that contained two sets of motor vehicle emissions budgets for PM-2.5: baseline budgets (budgets for only the milestone years) and SIP-base budgets (budgets for milestone years and the attainment year).[24] Petitioners opposed these budgets and submitted comments, stating that the South Coast Air Basin could not achieve attainment based on the proposed plans. EPA found the SIP-based budget was not adequate for transportation conformity purposes; however, EPA found the baseline budgets adequate and requested the baseline budgets to be used in future transportation. Further, EPA found the baseline budgets were “consistent with the requirement to demonstrate reasonable further progress.”[25] Petitioners filed this review to challenge EPA’s adequacy determination regarding the milestone-year baseline budget. In evaluating SIPs, the court applies a standard of review where it sets aside an agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[26]

The issue presented to the Ninth Circuit in this case was whether EPA’s adequacy determination for the milestone-year budget was proper. Petitioners argued that EPA failed to consider attainment data, thus invalidating the adequacy determination. Petitioners also argued that EPA may make an adequacy determination only when the state shows it can achieve attainment. In return, EPA argued that a state need only show linear progress toward an attainment target, and that the total target emission is the only information required to make the intermediate-year emissions calculations.

The court acknowledged that it must set aside an agency’s action when an agency fails to consider mandatory factors established in the statute.[27] However, courts give substantial deference to an agency’s interpretation of its own regulations,[28] as was the case here. The Ninth Circuit first considered EPA’s conformity rule with regard to milestone-year budgets, and found that attainment requirements are irrelevant to milestone budgets. Thus, EPA only considers the milestone years in the milestone budgets. The court agreed with EPA’s interpretation of the definition of “motor vehicle emissions budget,” where the budget must meet RFP or demonstrate attainment. Therefore, the milestone budgets in controversy would only be subject to the requirement that the nonattainment area make reasonable progress toward attainment.

The Ninth Circuit next examined the PM-2.5 Implementation Rules,[29] which detail what a SIP must contain. Under § 51.1007, a state must submit its SIP as quickly as possible and must include RFP as governed by § 51.1009. Section 51.1009 requires the SIP to show RFP, including the set milestone years of 2009 and 2012.[30] The emissions of each milestone year must linearly progress in the reduction of emissions from the base to the attainment year, with the calculation method expressly laid out in § 51.1009(f).[31] 

EPA examined the calculation method and found that the only information necessary to calculate a milestone-year budget is the attainment-year emissions target.[32] Petitioners interpreted the implementation rules differently, arguing that the State must submit an attainment demonstration for the starting point of the analysis. The court found Petitioners’ starting point to be a suggestion, rather than a mandated starting point under § 51.1007. The court also addressed Petitioners’ final argument that their interpretation was compelled by the agency’s intent, finding that the Petitioners’ cited cases failed to address the applicability of the implementation rules to the milestone budget. Thus, the court found, the implementation rules do not speak directly to whether EPA can approve milestone-year budgets and do not require EPA to use attainment data in its determination.

In summary, the Ninth Circuit denied Petitioners’ petition for review on the basis that EPA’s action was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to the law. The court found that the SIP requires only a demonstration of RFP toward attainment, which may be calculated using target attainment-year emission data. Therefore, Petitioners failed to convince the court that EPA’s PM-2.5 Implementation Rules require the use of attainment data for the milestone budget. Consequently, the court agreed with EPA that a state is not required to use attainment data when determining the adequacy of milestone-year motor vehicle emissions budgets.


[1] Petitioners are the Natural Resources Defense Council Inc., East Yard Communities for Environmental Justice, Coalition for a Safe Environment, and Endangered Habitats League.

[2] Respondent is the United States Environmental Protection Agency. Respondent-Intervenors are the Southern California Association of Governments and the South Coast Air Quality Management District.

[3] Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 638 F.3d 1183, 1187 (9th Cir. 2011) (paraphrasing Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2006)).

[4] Clean Air Act, 42 U.S.C. §§ 7401–7671q (2006).

[5] Id. § 7407(a).

[6] Id. § 7407(d).

[7] Id. § 7410(a)(1).

[8] Id.

[9] See, e.g., id. § 7502(a)(2)(A)–(B).

[10] Id. § 7502(c)(2). “Reasonable further progress” refers to annual incremental reductions in emissions of the relevant air pollutant required to ensure attainment of the NAAQS. Id. § 7501(1).

[11] See, e.g., 40 C.F.R. § 93.101 (2010) (defining “control strategy implementation plan revision”).

[12] Id. (defining “motor vehicle emissions budget”).

[13] See, e.g., National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652, 38,654 n.1, n. 5 (July 18, 1997) (to be codified at 40 C.F.R. pt. 50) (describing PM-10 as “particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers,” and PM-2.5 as “particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers”).

[14] 40 C.F.R. §§ 51.1007–51.1009 (2010).

[15] Id. §§ 51.008(b), 51.009(c)(2),(d).

[16] Id. § 51.009(d).

[17] 42 U.S.C. §§ 7506(c)(1), (2) (2006).

[18] Id.; see Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 638 F.3d 1183, 1187 (9th Cir. 2011) (recognizing such a conflict).

[19] Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 638 F.3d at 1187. “Conformity” means the transportation plan conforms to the SIP’s purpose of reducing air quality violations and reaching air quality standards, and ensuring that activities will not contribute to future violations. 42 U.S.C. § 7506(c)(1) (2006).

[20] See 40 C.F.R. § 93.118 (2010); see also Transportation Conformity Rule Amendments: Flexibility and Streamlining, 62 Fed. Reg. 43,780, 43,782 (Aug. 15, 1997) (to be codified at 40 C.F.R. pts. 51 and 93) (describing the conformity rule as allowing EPA to make an initial “cursory review”).

[21] 40 C.F.R. § 93.118(e)(4) (2010). These criteria include: 1) endorsement by the governor and subject to a state public hearing; 2) prior consultation with federal, state, and local agencies; 3) a clearly identified and quantified emissions budget; 4) achievement of RFP, attainment, or maintenance; 5) an emissions budget consistent with and related to the plan’s emissions inventory and control measures; and 6) explanation and documentation of previous changes to emissions budgets or control measures. Id. 

[22] 62 Fed. Reg. 43,780, 43,782 (Aug. 15, 1997) (to be codified at 40 C.F.R. pts. 51 and 93).

[23] 40 C.F.R. § 81.305 (2010). South Coast Air Basin includes Orange County and portions of Los Angeles, Riverside, and San Bernardino Counties. See id.

[24] Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 638 F.3d at 1189. South Coast Air Basin has a baseline year of 2004, milestone years of 2009 and 2012, and attainment year of 2015. Id. at 1188.

[25] Id. at 1189.

[26] Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (2006). The APA is silent as to the standard of review over agency adequacy determinations regarding SIPs. The court notes, however, that the United States Supreme Court directs appellate courts to proceed under the APA’s general standards of review for agency adequacy determinations. Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir. 2004) (citing Alaska Dep’t of Envtl. Conservation v. U.S. Envtl. Prot. Agency, 540 U.S. 461, 496–97, n.18 (2004)).

[27] Cerrillo-Perez v. U.S. Immigration and Naturalization Serv., 809 F.2d 1419, 1422 (9th Cir. 1987).

[28] Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“We must give substantial deference to an agency’s interpretation of its own regulations”). In this case EPA was not interpreting statutory language, but rather its own regulations in furtherance of the Clean Air Act. See 40 C.F.R. § 93.118(e)(4) (2010).

[29] 40 C.F.R. §§ 51.1007–51.1009 (2010).

[30] Id. § 51.1009(c)(2).

[31] Id. § 51.1009(d).

[32] See id. § 51.1009(f) (referring to the target attainment-year emissions as the “full implementation inventory”).

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