Medical Advocates for Healthy Air v. U.S. Environmental Protection Agency

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NOT FOR PUBLICATION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…

MEMORANDUM *

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…

concurring:

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 , 117 S.Ct. 1154 , 137 L.Ed.2d 281 (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…