FILED

NOT FOR PUBLICATION

FEB 10 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALTON TRUCKING, INC.; LOGGERS No. 13-74019

ASSOCIATION OF NORTHERN

CALIFORNIA, INC.; ROBINSON No. ENTERPRISES, INC.; NUCKLES OIL Environmental Protection Agency CO., INC., DBA Merit Oil Company;

CALIFORNIA CONSTRUCTION

TRUCKING ASSOCIATION, INC.; MEMORANDUM*

CONSTRUCTION INDUSTRY AIR

QUALITY COALITION; DELTA

CONSTRUCTION COMPANY;

SOUTHERN CALIFORNIA

CONTRACTORS ASSOCIATION, INC.;

RON CINQUINI FARMING; UNITED

CONTRACTORS,

Petitioners,

AMERICAN ROAD &

TRANSPORTATION BUILDERS

ASSOCIATION,

Petitioner-Intervenor,

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY; GINA MCCARTHY, in her official capacity as Administrator of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

USEPA,

Respondents,

CALIFORNIA AIR RESOURCES

BOARD,

Respondent-Intervenor.

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

Argued and Submitted January 22, 2021 Pasadena, California

Before: TALLMAN and IKUTA, Circuit Judges, and OLIVER,** District Judge.

Petitioners (collectively “Dalton”) petition for review of a Notice of

Decision whereby the Environmental Protection Agency (EPA) granted the request

by the California Air Resources Board (CARB) for authorization of its In-Use Off-

Road Diesel-Fueled Fleets Regulation (Fleet Requirements). See 78 Fed. Reg.

58,090 (Sept. 20, 2013). We have jurisdiction under 42 U.S.C. § 7607(b)(1), and

we deny the petition for review.

Under the Clean Air Act, the EPA “shall, after notice and opportunity for

public hearing, authorize California to adopt and enforce standards and other

** The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. 2 requirements relating to the control of emissions from” specified nonroad vehicles

or engines “if California determines that California standards will be, in the

aggregate, at least as protective of public health and welfare as applicable Federal

standards.” 42 U.S.C. § 7543(e)(2)(A). However, “[n]o such authorization shall

be granted” if the EPA finds that (among other things) “California does not need

such California standards to meet compelling and extraordinary conditions,”

§ 7543(e)(2)(A)(ii) (referred to as the “needs test,” 78 Fed. Reg. at 58,100).

The EPA was not arbitrary and capricious in declining to find that

“California does not need such California standards to meet compelling and

extraordinary conditions,” § 7543(e)(2)(A)(ii), under the alternative version of the

needs test, which requires “a review of whether the Fleet Requirements are per se

needed to meet compelling and extraordinary conditions,” 78 Fed. Reg. at 58,103.

The EPA considered “the relevant factors,” Motor Vehicle Mfrs. Ass’n of U.S. v.

State Farm Mut. Auto. Ins. Co., Inc., 463 U.S. 29, 42–43 (1983), including

statewide air quality, 78 Fed. Reg. 58,104, the state’s compliance with federal

National Ambient Air Quality standards for ozone and PM2.5 on a statewide basis,

id. at 58,103–04, the statewide public health benefits, id. at 58,104, and the utility

of the Fleet Requirements in assisting California to meet its goals, id. at 58,110.

Contrary to Dalton’s argument, the EPA did not limit its review to two of

3 California’s fourteen air quality regions. The EPA examined the relevant data

provided by CARB, and it articulated a “satisfactory explanation for its action

including a rational connection between the facts found and the choice made.” See

Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43 (cleaned up).

Because the EPA has conceded that it must apply the alternative version of

the needs test in this context, we need not address Dalton’s argument that the EPA

may not use the traditional version of the needs test, which requires a review of

whether California needs its standards in the aggregate to meet compelling and

extraordinary conditions, and therefore is easier to satisfy.1 We conclude,

however, that the EPA was also not arbitrary and capricious in declining to find

that “California does not need such California standards” under the traditional

version of the needs test. See 42 U.S.C. § 7543(e)(2)(A)(ii); 78 Fed. Reg. at

58,102.

We reject Dalton’s argument that because the EPA failed to give

stakeholders an opportunity to comment on its application of the alternative

version of the needs test, it committed a procedural error in issuing the Notice of

1 The question whether the alternative version of the needs test is an appropriate interpretation of a provision of the Clean Air Act analogous to § 7543(e)(2)(A) is currently pending before the D.C. Circuit. Union of Concerned Scientists v. Nat’l Highway Traffic Safety Admin., No. 19-1230 (D.C. Cir.). 4 Decision. As required by the Clean Air Act, the EPA provided “notice and an

opportunity for public hearing” before issuing the Notice of Decision. See 42

U.S.C. § 7543(e)(2)(A); 77 Fed. Reg. 50,500, 50,502 (Aug. 21, 2012). The EPA

was free to use informal adjudication to make the determination required under

§ 7543(e)(2)(A), see Davis v. U.S. EPA, 348 F.3d 772, 785 (9th Cir. 2003), and

appropriately complied with the informal adjudication requirements imposed by

the Administrative Procedure Act in issuing the Notice of Decision. See 5 U.S.C.

§ 555; Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 655 (1990).

PETITION DENIED.2

2 With this disposition, the panel also GRANTS Dalton’s unopposed motion to take judicial notice of three proposed exhibits attached to its supplemental brief. See Dkt. No. 93. 5