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Association of Irritated v. United States

February 2, 2011

ASSOCIATION OF IRRITATED RESIDENTS, AN UNINCORPORATED ASSOCIATION; EL COMITE PARA EL BIENESTAR DE EARLIMART, AN UNINCORPORATED ASSOCIATION; COMMUNITY OF CHILDREN'S ADVOCATES AGAINST PESTICIDE POISONING, AN UNINCORPORATED ASSOCIATION, PETITIONERS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LISA JACKSON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE US EPA; LAURA YOSHII, IN HER OFFICIAL CAPACITY AS REGIONAL ADMINISTRATOR OF REGION IX OF THE U.S. EPA, RESPONDENTS. NATURAL RESOURCES DEFENSE COUNCIL, INC.,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
PETITIONER,
v.
RESPONDENT.



EPA No. 2008-0677 EPA-R09-OAR- 2008-0677 EPA No. EPA-R09-OAR- On Petition for Review of an Order of the Environmental Protection Agency 2071

The opinion of the court was delivered by: Thomas, Circuit Judge:

FOR PUBLICATION

Argued and Submitted

November 1, 2010-San Francisco, California

Before: Cynthia Holcomb Hall and Sidney R. Thomas

Circuit Judges, and Robert S. Lasnik, Chief District Judge.*

Opinion by Judge Thomas

*The Honorable Robert S. Lasnik, Chief United States District Judge for the Western District of Washington, sitting by designation.

COUNSEL

OPINION

OPINION

The Association of Irritated Residents, El Comite para el Bienestar de Earlimart, the Community of Children's Advocates Against Pesticide Poisoning, and the Natural Resources Defense Council, petition for review of a final action by the Environmental Protection Agency approving in part and disapproving in part revisions to California's State Implementation Plan for meeting air quality standards for ozone under the Clean Air Act. We have jurisdiction under 42 U.S.C. § 7607(b)(1). We grant the petition for review and remand to EPA for further consideration.

I

A

Congress enacted the Clean Air Act (the "Act") to help protect and enhance the nation's air quality. 42 U.S.C. §§ 7401-7671q. The Act requires the Environmental Protection Agency ("EPA") to establish National Ambient Air Quality Standards ("NAAQS") for a variety of pollutants, one of which is ozone.*fn1 Id. §§ 7408-09. EPA then designates areas as "attainment" or "nonattainment" based on whether the areas meet the clean air standards for each particular pollutant. Id. § 7407(d). EPA classifies nonattainment areas based on the severity of the area's pollution, from Marginal to Extreme. Id. § 7511(a). The area at issue in this litigation-the Los Angeles-South Coast Air Basin ("South Coast")-is classified as Extreme. 73 Fed. Reg. 63,408, 63,409 (Oct. 24, 2008) (to be codified at 40 C.F.R. pt. 52).

Under the Act, states have primary responsibility for ensuring that the quality of their air satisfies the NAAQS, and they must detail their efforts in a State Implementation Plan ("SIP") for each region within that state. 42 U.S.C. § 7410(a). States must submit these SIPs and SIP revisions to EPA for review. EPA may either fully approve the plan, partially approve and partially disapprove the plan, or conditionally approve the plan. Id. § 7410(k). Once approved, SIPs become enforceable as federal law. Id. § 7413.

An EPA determination that a state has failed to submit a required plan, or EPA disapproval of a submitted plan, triggers two time periods. First, a "sanctions clock" begins during which time the state must either remedy the deficiency or face sanctions. Id. § 7509(a)-(b). Second, a "FIP clock" begins by the end of which EPA must either approve a state-submitted SIP or promulgate a Federal Implementation Plan ("FIP"). Id. § 7410(c)(1). Additionally, EPA must issue a "SIP call," and thereby require the state to make necessary revisions, if it finds that a previously approved SIP is "substantially inadequate" to attain or maintain air quality standards. Id. § 7410(k)(5).

The Act also contains "conformity" requirements. Under these conformity provisions, the federal government may not approve, accept, or fund any transportation plan, program, or project unless it conforms to an approved SIP. Id. § 7506(c). To make conformity determinations, transportation agencies must look to an approved SIP to find the maximum amount of pollution allowed from motor vehicle emissions. This motor vehicle emissions budget ("MVEB") is determined by the states in their SIPs by identifying the total allowable emissions consistent with meeting the statutory clean air requirement, and then allocating that total among various types of sources, such as motor vehicles. 40 C.F.R. § 93.101. Because SIPs sometimes take years to review, EPA may make preliminary adequacy determinations regarding the MVEBs found in the SIPs. Id. § 93.118. After further review, EPA may declare the MVEB to be inadequate. Id. § 93.118(e)(3).

In addition to the SIPs and conformity requirements applicable to all areas, the Act contains further requirements for nonattainment areas, depending on the severity of the ozone problem in the area. 42 U.S.C. §§ 7511-7511f. Two of these requirements are at issue in this case. The first requirement is for these nonattainment areas to submit SIP revisions demonstrating attainment of the ozone standard by the applicable date. These "attainment plans" have two main parts: (1) a control strategy to reach compliance; and (2) an attainment demonstration to show that under the strategy the area will meet the NAAQS by the statutory deadline. Id. §§ 7511a(c)(2)(a), (d)-(e); 7410(a)(2)(A).

The second requirement for nonattainment areas is to develop enforceable transportation strategies and control measures "to offset any growth in emissions from growth in vehicle miles traveled . . . and to attain reduction in motor vehicle emissions as necessary." Id. ยง 7511a(d)(1)(A). Suggested transportation control measures include programs for improved public transit, restrictions of certain lanes ...


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