Bahr v. U.S. Environmental Protection Agency

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANDRA L. BAHR; DAVID No. 14-72327

MATUSOW,

Petitioners,

OPINION

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY; GINA MCCARTHY,

Administrator, United States Environmental Protection Agency; JARED BLUMENFELD, Regional Administrator, EPA Region IX, Respondents,

STATE OF ARIZONA,

Respondent-Intervenor.

On Petition for Review of an Order of the Environmental Protection Agency

Argued and Submitted June 17, 2016 San Francisco, California

Filed September 12, 2016 Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and William Q. Hayes,* District Judge.

Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge Clifton

SUMMARY**

Environmental Law

The panel granted in part and denied in part a petition for review of an order of the United States Environmental Protection Agency approving Arizona’s Five Percent Plan for airborne particulate matter around Maricopa County, promulgated under the Clean Air Act.

Arizona submitted a new State Implementation Plan revision on May 25, 2012 – the Five Percent Plan – to achieve a five percent annual reduction in PM-10, a…

Partial Concurrence and Partial Dissent by Judge CLIFTON

*1222 OPINION

Sandra Bahr and David Matusow petition for review of a final rule issued by the Environmental Protection Agency (EPA) approving Arizona’s Five Percent Plan for airborne particulate matter around Mari-copa County. They argue that the EPA erred in approving this plan because it did not include best available control measures (BACM) and most stringent control measures (MSM) as of 2012. The petitioners also argue that the EPA failed to follow its own published guidance in approving Arizona’s claim that 135 exceedances of the air emission standard could be excluded from consideration. See 42 U.S.C. § 7619 (b)(1)(A). Finally, the petitioners argue that the EPA’s approval of the contingency measures included in Arizona’s Five Percent Plan was contrary to 42 U.S.C. § 7502 (c)(9) because the measures had already been implemented. We uphold the EPA’s determination that the control measures in Arizona’s Five Percent Plan did not need to be updated, and that the 135 exceedances were exceptional events that are excluded from consideration under the EPA’s regulation and guidance documents. We do not defer to the EPA’s…

concurring in part and dissenting in part:

I fully concur in sections I-IV of the majority opinion. I disagree, however, with the majority’s conclusion in section V that EPA’s approval of the contingency measures in Arizona’s SIP is contrary to the clear language of the CAA. In my view, the scope of the CAA’s contingency measures requirement is ambiguous and EPA’s reasonable interpretation of that requirement is entitled to deference.

Like the majority, I begin by analyzing the text of the relevant statutory provision, 42 U.S.C. § 7502 (c)(9). That section of the CAA requires state nonattainment plans to include contingency measures “to be undertaken” and “to take effect” in the event that an area “fails to make reasonable further progress, or to attain” the NAAQS by the applicable attainment date. Id. Although I agree with the majority that this language most often refers to measures that are to be implemented in the future, in the event that the other measures included in a state’s SIP are not sufficient to meet CAA requirements, I am not persuaded that the provision’s text forecloses the interpretation advanced by EPA and applied in this case.

The language of the statute…