FILED
NOT FOR PUBLICATION
JUL 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHYSICIANS FOR SOCIAL No. 14-73362
RESPONSIBILITY-LOS ANGELES; et
al.,
Petitioners, MEMORANDUM*
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; et al.,
Respondents,
SOUTH COAST AIR QUALITY
MANAGEMENT DISTRICT,
Respondent-Intervenor.
On Petition for Review of a Final Rule of the
Environmental Protection Agency
Argued and Submitted May 11, 2016
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Petitioners challenge aspects of EPA’s approval of revisions to California’s
state implementation plan for the Los Angeles-South Coast Air Basin, including an
attainment demonstration for the revoked one-hour national ambient air quality
standard for ozone. Approval and Promulgation of Implementation Plans for
South Coast, 79 Fed. Reg. 52526 (Sept. 3, 2014). We deny the petition.
Under the Clean Air Act, challenges to certain EPA actions must be filed no
later than sixty days from the date that notice of the action appears in the Federal
Register. 42 U.S.C. § 7607(b)(1). EPA required California to submit the instant
state implementation plan revisions to correct inadequate compliance with
California’s obligation to adopt and implement a plan providing for attainment of
the one-hour ozone standard. See Finding of Substantial Inadequacy of
Implementation Plan and Call for California State Implementation Plan Revision
for South Coast, 78 Fed. Reg. 889 (Jan. 7, 2013). That action, unchallenged by
Petitioners, was expressly undertaken pursuant to 42 U.S.C. § 7410(k)(5), not 42
U.S.C. § 7509(c). 78 Fed. Reg. 893. Petitioners’ attempt to argue that the
approved attainment deadline should have been adjusted under 42 U.S.C.
§ 7509(d) is therefore untimely and we deny this portion of the petition.
Petitioners’ remaining challenges are timely and we have jurisdiction under
42 U.S.C. § 7607(b)(1). We review EPA’s interpretation of the Clean Air Act by
applying the framework from Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837,
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842-43 (1984). Comm. for a Better Arvin v. Arvin, 786 F.3d 1169, 1175 (9th Cir.
2015). Petitioners’ challenge to the approved attainment demonstration’s inclusion
of new technology measures fails. Congress did not speak to the precise meaning
of “applicable dates” in 42 U.S.C. § 7511a(e)(5)(B), and EPA has reasonably
resolved that “applicable dates” includes dates validly adjusted pursuant to 42
U.S.C. § 7410(k)(5).
Petitioners also argue that the tonnage commitments included in the
approved attainment demonstration are unenforceable and therefore contrary to
law. This Court recently found materially identical commitments to be enforceable
when reviewing EPA’s approval of California’s state implementation plan for the
San Joaquin Valley for compliance with the national eight-hour ozone standard.
Comm. for a Better Arvin, 786 F.3d at 1179-80. We are not convinced by
Petitioners’ attempt to distinguish that case. Title 42 U.S.C. § 7410(l) continues to
apply to the one-hour ozone standard, regardless of the revocation of that standard,
by virtue of the statutory anti-backsliding obligations which remain. See 42 U.S.C.
§ 7410(l) (“The Administrator shall not approve a revision of a plan if the plan
would interfere with any . . . applicable requirement of this chapter.”); S. Coast Air
Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 899 (D.C. Cir. 2006) (holding that “the
anti-backsliding limitations” remain as requirements applicable to the one-hour
ozone standard).
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DENIED.
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FILED
Physicians for Social Responsibility v. EPA, No. 14-73362
JUL 25 2016
Christen, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the memorandum disposition, which I join in full. I write
separately to emphasize the importance of contingency measures where, as here,
EPA approves a state implementation plan (SIP) that includes section 182(e)(5)
“new technology measures.” See 42 U.S.C. § 7511a(e)(5)(B).
California’s 2013 SIP for the South Coast “relies on three types of strategies
to reduce basin-wide emissions to the extent necessary to demonstrate attainment
of the 1-hour ozone standard”: (1) implementation of reasonably available control
measures (RACM); (2) “commitments made by [the local and state air quality
control boards] to bring certain regulatory initiatives to their respective boards on a
certain schedule and to meet certain aggregate emissions reductions in certain
years”; and (3) new technology measures. See Approval & Promulgation of
Implementation Plans; California; South Coast 1-Hour & 8-Hour Ozone, Proposed
Rule, 79 Fed. Reg. 29,712, 29,718 (May 23, 2014). The South Coast 2013 SIP
also includes, as required by the Clean Air Act, “enforceable commitments to
develop and adopt contingency measures . . . if the anticipated [new] technologies
do not achieve planned reductions.” 42 U.S.C. § 7511a(e)(5)(B). EPA approved
California’s use of “new technology measures” after determining that the South
1
Coast cannot achieve the 1-hour standard by relying on existing reduction
strategies alone. See 79 Fed. Reg. at 29,722. I agree with my colleagues that
EPA’s reading of the Clean Air Act as permitting post-2010 plans to include “new
technology measures” is reasonable.
But prior versions of the South Coast’s SIP likewise included “new
technology measures” and the statutorily required “enforceable commitments to
develop and adopt contingency measures” if the new technology measures failed.
42 U.S.C. § 7511a(e)(5)(B); Approval & Promulgation of State Implementation
Plans; California—South Coast, 65 Fed. Reg. 6,091, 6,093, 6,099 (Feb. 8, 2000).
The record in this case does not reveal whether those contingency measures
triggered when the South Coast failed to attain the 1-hour standard by the 2010
deadline, but petitioners’ counsel’s responses to questions posed at oral argument
suggest that the contingencies did not trigger because California withdrew them,
and other control measures, from the South Coast SIP in 2008. See Association of
Irritated Residents v. EPA, 686 F.3d 668, 673 (9th Cir. 2011) (“In 2008, California
withdrew some of the 2003 Attainment Plan’s key elements, including many of the
control measures.”). In 2009, EPA partially disapproved of California’s decision
to withdraw control measures from its SIP, but it did not require the State to
develop a new SIP to correct the error. Concerned citizens sued, and in
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Association of Irritated Residents we held that EPA could not ignore the State’s
new, inadequate plan, but rather needed to solicit from California a revised SIP that
demonstrated how the South Coast would attain the relevant ozone standard. Id. at
677.
Association of Irritated Residents clarified that EPA may not permit a state
to delete from its SIP control measures that give the SIP teeth, such as section
182(e)(5) contingency measures. As is relevant here, Association of Irritated
Residents ensures that the section 182(e)(5) contingency measures incorporated
into the South Coast’s 2013 SIP will be there when the South Coast anticipates that
its new technology measures will achieve planned reductions. Hopefully the new
technology measures function as promised; if not, the contingency measures
should trigger as the Clean Air Act requires. See 42 U.S.C. § 7511a(e)(5)(B).
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