FILED
NOT FOR PUBLICATION JUN 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEDICAL ADVOCATES FOR No. 12-73386
HEALTHY AIR; LATINOS UNITED
FOR CLEAN AIR; SIERRA CLUB; MEMORANDUM*
NATIONAL PARKS CONSERVATION
ASSOCIATION; NATURAL
RESOURCES DEFENSE COUNCIL,
Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; LISA P. JACKSON,
Administrator, U.S. EPA; JARED
BLUMENFELD, Regional Administrator,
Region IX, U.S. EPA,
Respondents,
SOUTH COAST AIR QUALITY
MANAGEMENT DISTRICT; SAN
JOAQUIN VALLEY UNIFIED AIR
POLLUTION CONTROL DISTRICT;
NATIONAL ENVIRONMENTAL
DEVELOPMENT ASSOCIATION’S
CLEAN AIR PROJECT,
Respondents-Intervenors.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted February 12, 2015
San Francisco, California
Before: SCHROEDER and SILVERMAN, Circuit Judges and GARBIS,** Senior
District Judge.
This case arises out of the Environmental Protection Agency’s (“EPA”)
1997 decision to change the measurement standard for setting the national ambient
air quality standard (“NAAQS”) for the pollutant ozone. Prior to 1997, the EPA
measured average pollutant concentrations hourly. In 1997, however, the EPA
concluded that measuring average pollutant concentrations over an 8-hour span
would better protect public health. The EPA also made the standard slightly more
stringent, thus changing not only “the measuring stick [but also] the target.” South
Coast Air Quality Mgmt. Dist. v. EPA (“South Coast”), 472 F.3d 882, 892 (D.C.
Cir. 2006).
Section 172(e) of the Clean Air Act (“CAA”) provides that when a NAAQS
is “relaxed,” the EPA is authorized to approve controls that are “not less stringent”
than controls previously in effect. The CAA does not address a change to the
NAAQS that results in a strengthened standard.
**
The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
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This petition for review is a challenge by numerous environmental groups to
the EPA’s approval of a revision to California’s State Implementation Plan (“SIP”)
that authorized the San Joaquin Valley Unified Air Pollution Control District
(“Pollution Control District”) to impose fees on mobile sources of
pollution—primarily motor vehicles—as an alternative to the fees previously
imposed on stationary sources of pollution pursuant to Section 185 of the CAA.
Respondent-Intervenors, including the Pollution Control District and
industry groups, question petitioners’ standing, arguing that because the alternative
control is not only “not less stringent” than Section 185, but is in fact more
stringent, the petitioners are not injured. The practical effect of the alternative
control, however, is to shift costs from stationary sources to the multitude of
vehicle owners, and this has an impact on the individuals petitioners represent that
is sufficient to satisfy standing requirements. See Natural Res. Def. Council v.
EPA, 643 F.3d 311, 319 (D.C. Cir. 2011) (recognizing that a plan that EPA might
legitimately find equivalent to the Section 185 controls “could nonetheless be so
meaningfully different as to cause cognizable Article III injury.”).
The merits of the petitioners’ challenge go to the same issues we addressed
in Natural Res. Def. Council v. EPA (“NRDC”), 779 F.3d 1119 (9th Cir. 2015).
We there held that the principles of Section 172(e) that address the relaxation of a
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NAAQS should apply when a standard is strengthened. Therefore, so long as an
alternative control is “not less stringent,” the principles of Section 172(e) are
satisfied. We followed the D.C. Circuit in South Coast in recognizing that Section
185 is a “control” to which Section 172(e) applies. 472 F.3d at 903. The
petitioners do not contend that the alternative control proposed by the Pollution
Control District is “less stringent” than Section 185 controls.
We held in NRDC that the EPA reasonably interpreted Section 172(e) to
authorize the EPA to approve alternative controls not less stringent than the
Section 185 fee program. 779 F.3d at 1128. We must reach the same result here.
Because the EPA concluded that the Pollution Control District’s revision to its
portion of California’s SIP is not less stringent than the Section 185 controls, the
EPA was authorized to approve it.
The petition for review is DENIED.
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