Bahr v. Regan, No. 20-70092 (9th Cir. 2021)
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The Ninth Circuit denied a petition for review challenging the EPA's findings and its conclusion that Arizona had achieved the statutory required reduction in ozone concentration by July 2018, in compliance with the Clean Air Act. After a major wildfire broke out in the San Bernardino National Forest in southeast California (the Lake Fire), three hundred miles east of the fire, six air quality monitors in the Phoenix region registered abnormally high concentrations of ozone, in excess of the National Ambient Air Quality Standard (NAAQS).
The panel concluded that EPA did not act arbitrarily or capriciously in finding a clear causal connection between the Lake Fire and the June 20, 2015 exceedances. The panel explained that the evidence demonstrates that smoke (including ozone precursor chemicals) from the Lake Fire reached the exceedance monitors and caused abnormal ozone readings relative to similar historical conditions. Furthermore, petitioners failed to produce evidence sufficient to overcome the required deference to EPA's technical factual findings where EPA considered each of petitioners' comments during the proposed rule phase and addressed them with specificity; articulated a rational connection between the evidence and its own conclusions; and the resulting conclusion, based on the weight of the evidence, is rational.
The panel also concluded that EPA did not act contrary to the Clean Air Act when it suspended the Phoenix nonattainment area's attainment contingency measures requirement after EPA issued a section 7511(b)(2) Attainment Determination. The panel concluded that the Clean Air Act is silent as to whether State Implementation Plans (SIPs) must contain attainment contingency measures after the attainment date and granted EPA's reasonable construction of 42 U.S.C. 7502(c)(9) under Chevron deference.
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Court Description: Clean Air Act. The panel denied a petition for review challenging the Environmental Protection Agency’s findings and its conclusion that Arizona had achieved the statutory required reduction in ozone concentration by July 2018, in compliance with the Clean Air Act. Because of a major wildfire in southeast California in 2015 (the “Lake Fire”), six air quality monitors in the Phoenix region registered abnormally high concentrations of ozone, in excess of the National Ambient Air Quality Standard (NAAQS). If not for those six exceedances, Arizona would have been able to demonstrate it had attained the ozone NAAQS by July 2018. The Clean Air Act requires the Environmental Protection Agency (“EPA”) to exclude monitoring data if a recorded exceedance was clearly caused by exceptional, uncontrollable events, such as a wildfire. In 2007, EPA had implemented an Exceptional Events Rule to * The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. BAHR V. REGAN 3 govern the treatment of such data. In September 2016, EPA revised that Exceptional Events Rule. To demonstrate that the June 20, 2015, exceedances qualified for exclusion as influenced by exceptional events, Arizona submitted to EPA three sets of statistical demonstrations. Arizona submitted its initial demonstration while the 2007 rule was in effect but submitted its two supplemental demonstrations while the 2016 rule was in effect. EPA decided to apply the requirements of the 2016 rule and concluded that the Lake Fire did indeed cause the June 20, 2015, monitor readings. EPA then excluded the six exceedances from its NAAQS calculations. Petitioners, citizens of Phoenix, alleged that the EPA violated the presumption against retroactivity when it applied the 2016 version of the Exceptional Events Rule because the 2007 rule had been in effect when the 2015 Lake Fire and exceedances occurred. The panel held that petitioners failed properly to raise the issue of retroactivity to allow the EPA to understand and rule on it. The panel therefore concluded that Petitioners failed to exhaust the issue as to whether the 2007 or 2016 Exceptional Events Rule governed the final agency action. Alternatively, the panel held that even if Petitioners adequately raised the issue, the application of the 2016 Exceptional Events Rule did not impact any vested rights, create any new obligations, or otherwise impact any regulated party’s interests in fair notice, reasonable reliance, or settled expectations. Therefore, the application of the 2016 Exceptional Events Rule was not impermissibly retroactive and no presumption against retroactivity arose. 4 BAHR V. REGAN Petitioners further claimed that Arizona’s evidence did not support EPA’s finding that a clear causal connection existed between the Lake Fire and the June 20, 2015, exceedances. The panel deferred to EPA’s technical conclusions and found that Arizona adduced evidence sufficient to allow EPA to make such finding. As a result, the EPA did not act arbitrarily or capriciously by excluding the data from the six monitors as falling within the Exceptional Events Rule. Finally, Petitioners alleged that EPA acted contrary to the Clean Air Act in suspending Arizona’s contingency measures requirement in EPA’s July 2018 final rule. Petitioners contended that the Clean Air Act requires states to provide attainment contingency measures regardless of whether the region attains the NAAQS by its attainment date. The panel held that petitioners forfeited this argument by not sufficiently raising it in their comment before the agency, but, even under a lenient interpretation of the content of their comment before the agency, the panel concluded that EPA’s construction of the Clean Air Act was owed deference under Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). EPA’s suspension of the contingency measure requirements in its July 2018 final rule did not violate the Clean Air Act. Concurring, Judge Bumatay stated that the majority opinion persuasively explained how the petitioners failed to bring their objections regarding the Exceptional Events Rule and the Contingency Measures Requirement in a timely manner. Accordingly, there was no need to reach the merits of those objections here. He thus joined the majority opinion except as to sections I.B and III.B. BAHR V. REGAN 5
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