In Association of Irritated Residents v. United States Environmental Protection Agency (2012) 686 F.3d 668, the Ninth Circuit Court of Appeals found the Environmental Protection Agency’s (EPA) final decision with regard to California’s Revised State Implementation Plan (SIP) under the Clean Air Act (Act) arbitrary and capricious. The court therefore granted the petition and remanded the case to the EPA for further consideration.
Pursuant to the Act, EPA designated the Los Angeles-South Coast Air Basin as an “extreme” nonattainment area. Under the Act, California has primary responsibility for ensuring that the State’s air quality satisfies National Ambient Air Quality Standards (NAAQS), and must detail its efforts related thereto in a SIP for each region within the state. In 2003, California submitted a 2003 SIP Revision to EPA, which included the 2003 Attainment Plan, PEST-1, and a demonstration that no transportation control measures were required. In 2008, prior to EPA making a final decision on the 2003 Attainment Plan, California withdrew some of the 2003 Attainment Plan’s key elements, including many of the control measures.
In 2008, EPA proposed to approve the control measures that were not withdrawn from the 2003 Attainment Plan (including PEST-1), and to disapprove the attainment demonstration in the 2003 Attainment Plan because the demonstration was largely based on the withdrawn commitments. In disapproving the attainment demonstration, EPA concluded California could continue to rely on the attainment demonstration from the 1997/1999 SIP. EPA also proposed to approve California’s assertion that no transportation control measures were required based on California’s demonstration that there would be no growth in aggregate vehicle emissions.
Petitioners raise three issues in their petition for review. First, they contend EPA’s failure to order California to submit a revised attainment plan for the South Coast after it disapproved the 2003 Attainment Plan was arbitrary and capricious. Second, petitioners contend EPA’s approval of PEST-1 violates the Clean Air Act because PEST-1 lacks enforceable commitments. Third, petitioners contend EPA violated the Act by failing to require transportation control measures to combat the increase in vehicle miles traveled. The court granted the petition as to all three claims.
First, the court explained that based on California’s determination that an updated plan was necessary, the EPA knew or should have known that reliance on the 1997/1999 SIP attainment demonstration was no longer adequate. Therefore, EPA’s decision to rely on the prior SIP was arbitrary and capricious.
The court also found EPA’s approval of PEST-1 arbitrary and capricious. The court rejected EPA’s argument that the Petitioners lacked standing and held that the record demonstrated EPA failed to determine whether the existing Pesticide Element SIP had sufficient enforcement mechanisms to satisfy the Act’s requirements. The court stated that when EPA approves a plan revision, it must ensure the whole plan, as revised, satisfies the Act’s requirements, especially when a revision simply reiterates the prior plan. Given that rule, the court remanded the issue back to EPA to make the requisite determination.
Lastly, the court explained that whether California was required to include transportation control measures in its 2003 Revised SIP depended on the interpretation of the Act’s requirement for transportation control measures “to offset any growth in emissions from growth in vehicle miles traveled.” EPA focused only on aggregate motor vehicle emissions; since California’s vehicle miles traveled will increase by 30%, but the aggregate motor vehicle emissions will decrease, EPA concluded that no transportation control measures were required. The court held that based on the plain text of the Act, “any growth in emissions” refers to any increase in the level of emissions emanating solely from VMT in a prior year. Therefore, the method used by EPA to determine no transportation control measures were required was inconsistent with the Act. The court stated that if EPA acted consistent with the Act, it would have required transportation control measures.
When reviewing SIP revisions, EPA must examine the SIP as a whole to ensure that the SIP, as revised, appropriately meets Clean Air Act requirements. Additionally, in evaluating the need for transportation control measures, EPA must consider increases in emissions caused by VMTs and cannot rely solely on consideration of total aggregate motor vehicle emissions.
Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.
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