Association of Irritated Residents v. United States Environmental Protection Agency, No. 19-71223 (9th Cir. 2021)
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The Environmental Protection Agency approved California’s plan for meeting the air quality standard for ozone in the San Joaquin Valley (Clean Air Act, 42 U.S.C. 7408(a), 7409(a)). The plan contains a single contingency measure that will be activated if the other provisions do not achieve reasonable further progress toward meeting the standard.
The Ninth Circuit remanded, finding the approval arbitrary after holding that AIR, a California nonprofit corporation with members who reside in the Valley, had Article III standing. AIR’s challenge was ripe for review. When an agency changes its policy, it must display awareness that it is changing position and show that there are good reasons for the new policy. In approving a contingency measure that provided a far lower emissions reduction, the EPA did not acknowledge that it had changed its understanding of what reasonable further progress meant. The EPA may not avoid the need for robust contingency measures by assuming that they will not be needed and did not provide a reasoned explanation for approving the plan. The court rejected AIR’s challenge to the approval of the State’s Enhanced Enforcement Activities Program. The program did not create an emission limitation that was less stringent than one in effect in the state plan so nothing in the Clean Air Act prohibited the state from pursuing it.
Court Description: Clean Air Act / Standing. The panel granted in part, and denied in part, a petition for review of a final rule of the Environmental Protection Agency (“EPA”) approving the State of California’s plan for meeting the air quality standard for ozone in the San Joaquin Valley, 84 Fed. Reg. 11,198 (Mar. 25, 2019). The plan contained a single contingency measure that would be activated if the other provisions of the plan do not achieve reasonable further progress toward meeting the standard. An environmental organization petitioned for review, arguing that the contingency measure was inadequate. * The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. ASS’N OF IRRITATED RESIDENTS V. USEPA 3 The panel held that petitioner, Association of Irritated Residents (“AIR”), a California nonprofit corporation with members who reside in the Valley, met the requirements for Article III standing. AIR’s members established injury in fact by submitting declarations containing credible allegations of respiratory distress as well as harm to their recreational and aesthetic interests as a result of ozone depletion in the Valley. The threat that the Valley will continue to fail to meet the ozone standard–and therefore that the contingency measure will be activated–is neither conjectural nor hypothetical, but a reasonable inference from the historical record. The panel also concluded that AIR’s challenge was ripe for review. AIR contended that the EPA’s approval of the contingency measure in the State’s plan reflected an unreasonable interpretation of the Clean Air Act and was arbitrary and capricious because the measure provided only a nominal emissions reduction of one ton per day. The panel agreed that the EPA’s approval was arbitrary and capricious. Under the Administrative Procedure Act, when an agency changes its policy, it must display awareness that it is changing position and show that there are good reasons for the new policy. In approving a contingency measure that provided a far lower emissions reduction, the EPA did not acknowledge that it had changed its understanding of what reasonable further progress meant. The panel rejected the EPA’s contention that its new position was a response to this court’s decision in Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016). The panel held that the EPA may not avoid the need for robust contingency measures by assuming that they will not be needed. Because the EPA did not provide a reasoned explanation for approving the State plan, the rule was arbitrary and capricious. 4 ASS’N OF IRRITATED RESIDENTS V. USEPA The panel rejected AIR’s challenge to the EPA’s approval of the State’s Enhanced Enforcement Activities Program. The EPA did not recognize the program as a stand- alone contingency; instead the agency approved it as a plan strengthening measure. The panel held that because the program did not create any emission limitation that was less stringent than one in effect in the state plan, nothing in the Clean Air Act prohibited the State from pursuing it. The panel further held that the program was consistent with the statutory requirement that the measures included in the plan be enforceable.
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