FILED

NOT FOR PUBLICATION

AUG 10 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEDICAL ADVOCATES FOR No. 12-70630

HEALTHY AIR; SIERRA CLUB,

Petitioners,

MEMORANDUM*

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY; LISA P. JACKSON,

Administrator, U.S. Environmental Protection Agency; JARED BLUMENFELD, Regional Administrator, Region IX, U.S. Environmental Protection Agency,

Respondents,

SAN JOAQUIN VALLEY UNIFIED AIR

POLLUTION CONTROL DISTRICT,

Respondent - Intervenor,

SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT,

Respondent - Intervenor.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On Petition for Review of an Order of the Environmental Protection Agency

Argued and Submitted May 11, 2016 San Francisco, California

Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.

Petitioners seek review of a final EPA action finding two areas in California

did not attain the revoked one-hour ozone pollution standard by the applicable

deadline. EPA issued this rule pursuant to its general rulemaking authority and its

authority to reclassify areas based on air quality under §§ 301(a) and 181(b)(2) of

the Clean Air Act. Petitioners argue EPA violated the clear dictates of the Clean

Air Act by declining to rely on § 179(c) to make this nonattainment finding, which

would have triggered attainment planning provisions under § 179(d). We have

subject matter jurisdiction to review a local or regionally applicable final EPA

action under 42 U.S.C. § 7607(b)(1). Constitutionally, our jurisdiction is also

contingent on Petitioners having standing to bring this action. Petitioners fail to

satisfy the redressability requirement for standing. We therefore have no

jurisdiction to review this appeal. We dismiss the petition.

An organization has standing to bring an action on behalf of its members if

the suit does not require its members’ direct participation; the suit seeks to protect

interests that are germane to the organization’s purpose; and members would have

2 standing to sue individually. See Hunt v. Wash. State Apple Advert. Comm’n, 432

U.S. 333, 343 (1977). Petitioners’ lawsuit does not require its members’

participation. It seeks to advance Petitioners’ organizational mission to protect the

environment. For individual members to have standing to sue, Petitioners must

show their members have suffered a concrete and particularized injury; that the

injury is fairly traceable to the challenged EPA action; and that it is likely, as

opposed to merely speculative, that a favorable decision will redress that injury.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The burden of establishing

these elements of standing is Petitioners. Id. at 561.

Petitioners fail to demonstrate how compelling EPA to rely on § 179(c) to

make a one-hour ozone nonattainment determination, thereby triggering the

attainment provisions in § 179(d), would result in the San Joaquin Valley and

South Coast air basins implementing more stringent anti-pollution measures or

attaining the one-hour ozone standard more expeditiously. When EPA determined

the areas had failed to attain the one-hour standard, it ensured that anti-backsliding

measures would remain in effect and required the state to submit new attainment

plans. The plans California has submitted for the two nonattainment areas commit

the state to implementing all feasible ozone control measures and to attaining the

one-hour standard as expeditiously as practicable. Petitioners fail to show how

3 requiring the nonattainment areas to implement plans in accordance with § 179(d)

will cause these areas to attain the one-hour ozone standard faster than they will

under the current plans. To the contrary, remanding to the EPA to re-issue its

nonattainment determinations pursuant to § 179(c) would further delay the

attainment process and, possibly, the deadlines for these areas to attain the one-

hour ozone standard. Promulgating a nonattainment determination pursuant to §

179(c) would not result in these areas attaining the one-hour ozone standard more

expeditiously. Requiring EPA to take such action would not redress Petitioners’

health and aesthetic injuries.

PETITION FOR REVIEW DISMISSED.

1

1 Motion to take Judicial Notice filed on December 16, 2015 by Respondent- Intervenor is GRANTED. 4

FILED

Medical Advocates for Healthy Air v. U.S. E.P.A., No. 12-70630

AUG 10 2016

Christen, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority that the petition should be denied, but I reach that

result in a different way.

I conclude, contrary to the majority’s position, that petitioners established

the “irreducible constitutional minimum” of Article III standing. See Bennett v.

Spear, 520 U.S. 154, 167 (1997). EPA argues that petitioners lack standing

because they cannot demonstrate redressability. According to EPA, petitioners’

requested relief (remand with direction to make a section 179 finding) will extend

the attainment deadline for the South Coast and San Joaquin Valley because a

section 179(c) finding will restart section 172(a)(2)(A)’s ten-year deadline. See 42

U.S.C §§ 7509(d), 7502(a)(2)(A). The majority concludes that petitioners lack

standing. It reasons that petitioners failed to explain how a remand from our court

“would result in the San Joaquin Valley and South Coast air basins implementing

more stringent anti-pollution measures or attaining the one-hour ozone standard

more expeditiously.”

I agree that a remand could give the basins even more time to attain the one-

hour standard, but petitioners also argued before the Agency and in our court that

applying section 179(c) would require California to develop substantively stricter

1 plans. For example, petitioners argued before the Agency “that section 179 does

not permit the use of section 182(e)(5) [new technology] measures.” 79 Fed. Reg.

52,526, 52,531 (Sept. 3, 2014). And in its briefing to our court, petitioners

explained that “EPA’s refusal to comply with the strict mandates of the Act has

allowed . . . harmful conditions to persist by permitting the air districts to adopt

plans that are weaker than those required by the Clean Air Act.” A comparison

between the statute (which governed pre-revocation SIPs) and EPA’s regulation

(which governs post-revocation SIPs) lends support to petitioners’ argument.

Compare 42 U.S.C. § 7410 (listing requirements for a SIP revision that follows

from a section 179(c) finding of failure to attain), with 40 C.F.R. §§ 51.905,

51.900(f) (listing requirements for a SIP revision that follows from a section 301

finding of failure to attain a revoked standard). In my view, petitioners’ contention

that remand would produce substantively more protective SIPs is enough to

establish redressability. In other words, I am persuaded by petitioners that they

made a sufficient showing of redressability because even if remand for application

of section 179(c) might technically give the districts more time to attain, it would

also require California to develop substantively stricter plans that would ultimately

produce cleaner air. See Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th

Cir. 2013) (petitioners must show that their “injury is likely to be redressed by a

2 favorable court decision” (emphasis added) (citing Lujan v. Def. of Wildlife, 504

U.S. 555, 560–61 (1992))).

EPA also argues that petitioners’ lawsuit is untimely, but this is clearly not

the case. EPA revoked the one-hour standard in 2004, and, as part of this

rulemaking, it stated it would not make section 179(c) failure-to-attain findings for

the revoked standard. See 40 C.F.R. § 51.905(e)(2)(i)(A) (2006 ed.). The D.C.

Circuit “vacate[d] those portions of the 2004 Rule [40 C.F.R. § 51.905 (2006 ed.)]

that . . . allow backsliding,” in South Coast Air Quality Management District v.

EPA (SCAQMD), 472 F.3d 882, 905 (D.C. Cir. 2006). The D.C. Circuit left it up

to EPA to determine what provision it should use to trigger the anti-backsliding

measures once an area fails to attain. Id. at 902. It was therefore reasonable for

petitioners to read SCAQMD as reinstating EPA’s obligation to trigger these

measures with a section 179(c) finding. See 42 U.S.C. § 7509(c)(1) (section 179(c)

providing for “[n]otice of failure to attain”); id. § 7511d(a) (anti-backsliding

provision that triggers on failure to attain); id. § 7502(c)(9) (same). Petitioners

could not have known that EPA intended to rely on section 301 until EPA issued

the December 30, 2011 Determinations Rule, cf. Sierra Club de Puerto Rico v.

EPA, 815 F.3d 22, 27–28 (D.C. Cir. 2016) (explaining when a claim under the

CAA ripens), and petitioners challenged that rule within sixty days of its

3 publication in the Federal Register. Petitioners’ challenge was therefore timely.

See 42 U.S.C. § 7607(b).

That leaves the merits. This case is, at its core, a Chevron case, and in my

view, the petition must be denied because EPA reasonably interpreted an

ambiguous statute. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837, 842–43 (1984). The Clean Air Act does “not directly address[] the

precise question at issue,” id. at 843, that is, whether EPA was required to use

section 179(c) to trigger the Act’s anti-backsliding provisions after it revoked the

one-hour standard. Section 179(c) does not say whether it applies to a revoked

standard. See 42 U.S.C. § 7509(c). Sections 185(a) and 179(c)(9) (the relevant

anti-backsliding measures) are likewise silent: both provisions trigger when an area

“fails to attain,” 42 U.S.C. § 7511d(a); 42 U.S.C. § 7502(c)(9), but neither states

that EPA must make the “failure to attain” finding under section 179(c). Because

the statute is ambiguous, we must defer to EPA’s interpretation of it as long as that

interpretation was “permissible.” Chevron, 467 U.S. at 843. I am persuaded that it

was.

EPA invoked its general rulemaking authority under the Clean Air Act as the

statutory basis for its finding that the South Coast and San Joaquin Valley failed to

attain the revoked one-hour standard. See 76 Fed. Reg. 82,133 (Dec. 30, 2011)

4 (final rule); 76 Fed. Reg. 56,694, 56,701 (Sept. 14, 2011) (proposed rule citing

section 301(a), 42 U.S.C. § 7601(a)). That provision gives EPA broad authority

“to prescribe such regulations as are necessary to carry out [its] functions under

this chapter.” 42 U.S.C. § 7601(a)(1). As the D.C. Circuit explained in SCAQMD,

one of EPA’s essential functions is to “determine its procedure” for triggering the

Act’s anti-backsliding provisions. 472 F.3d at 902. No one disputes that EPA’s

finding under section 301 served this purpose. Particularly in light of our recent

reminder that “[t]he only remaining requirements as to the one-hour NAAQS are

the anti-backsliding limitations,” Nat. Res. Def. Council v. EPA, 779 F.3d 1119,

1125 (9th Cir. 2015) (citation omitted), EPA’s decision to make an attainment

finding under section 301(a) for the limited purpose of triggering the anti-

backsliding provisions in sections 185(a) and 179(c)(9) was reasonable.

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