Arizona ex rel. Darwin v. EPA, No. 14-73368 (9th Cir. 2017)
Annotate this CaseThis extensive litigation arose when Arizona clashed with the EPA over its State Implementation Plan (SIP) required under a new regulatory scheme codified in Section 169A of the Clean Air Act (CAA), 42 U.S.C. 7491(b). The scheme required each state with emissions impacting protected federal lands to create a SIP describing how the state intended to make reasonable progress toward the national goal to improve air visibility in federal parks and forests. The EPA determined that Arizona could do better in improving visibility even if the SIP listed proposals to manage and reduce emissions from various industrial sources operated within the state. Arizona and several private companies (petitioners) subsequently objected to the EPA's most recent Federal Implementation Plan (FIP), which petitioners claim constituted invalid agency action. The court held that several of petitioners' objections to the FIP were not properly before it because they were not presented to the EPA during the notice-and-comment period. In regard to the remaining objections that were ripe for review regarding regulation of the cement kiln and copper smelters at issue, the court concluded that the EPA's emission-control measures were not arbitrary or capricious and thus constituted valid agency rulemaking.
Court Description: Environmental Law. The panel dismissed in part and denied in part petitions for review brought by the State of Arizona and several private companies objecting to several sections of the United States Environmental Protection Agency’s most recent Federal Implementation Plan (“FIP”), promulgated under the Clean Air Act, to replace certain rejected portions of Arizona’s State Implementation Plan, concerning how the state intended to improve air quality in federal parks and forests by reducing emissions of various pollutants. The regulatory scheme codified in Section 169A of the Clean Air Act required each state with emissions impacting protected federal lands to create a State Implementation Plan. If the state submitted either a deficient plan or none at all, the Act required the EPA to promulgate its own plan – called a FIP – to force compliance with Congress’s mandate. The panel held that several of petitioners’ objections to the FIP were not properly before the court because they were not first presented to the EPA during the notice-and comment period in 42 U.S.C. § 7607(d)(7)(B). Specifically, the panel held that the issues petitioners raised for the first time on appeal were not so “key” that, assuming the D.C. Circuit’s “key assumption” applied, Nat. Res. Def. Council v. EPA, 755 F.3d 1010, 1023 (D.C. 2014), they must have been anticipated by the EPA. The panel concluded that petitioners 4 STATE OF ARIZONA EX REL DARWIN V. EPA were barred from challenging in this appeal the numerical “reasonable progress goals” and the EPA’s decision to jettison the affirmative defense for malfunction. The panel held that it was barred from reviewing those issues in this proceeding, and dismissed that portion of the petitions. The remaining objections that were ripe for consideration consisted of a series of technical challenges to the emission controls imposed on a cement kiln and copper smelters. According due deference, the panel held that the EPA’s emission-control measures were not arbitrary or capricious and thus constituted valid agency rulemaking.
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