El Comité Para El Bienestar De Earlimart v. U.S. Environmental Protection Agency , 786 F.3d 688 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EL COMITÉ PARA EL BIENESTAR DE No. 12-74184
EARLIMART, an unincorporated
association; ASSOCIATION OF
IRRITATED RESIDENTS, a California
non-profit corporation; WISHTOYO OPINION
FOUNDATION, a California non-profit
corporation; VENTURA
COASTKEEPER, a program of the
Wishtoyo Foundation,
Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; LISA P. JACKSON, in her
official capacity as Administrator of
the US EPA; JARED BLUMENFELD,
in his official capacity as Regional
Administrator for Region IX of the
US EPA,
Respondents.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted
February 12, 2015—San Francisco California
2 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
Filed May 8, 2015
Before: Mary M. Schroeder and Barry G. Silverman,
Circuit Judges and Marvin J. Garbis,* Senior District Judge.
Opinion by Judge Schroeder
SUMMARY**
Environmental Law
The panel denied a petition for review brought by several
community organizations challenging the Environmental
Protection Agency’s 2012 approval of revisions and additions
to California’s Pesticide Element for its State Implementation
Plan under the Clean Air Act, relating to the reduction of
volatile organic compounds, precursors of ozone, in the San
Joaquin and Ventura air basins; and held that the EPA was
not arbitrary and capricious in construing the Pesticide
Element and approving Fumigant Regulations and the SIP
Revision.
The panel held that the EPA’s interpretation of the
Pesticide Element’s commitment to reduce emissions by
certain levels was not arbitrary and capricious in light of the
ambiguity in the Pesticide Element’s plain language.
*
The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 3
The panel held that the EPA reasonably determined that
the revisions fulfilled the commitment in the original
Pesticide Element to adopt enforceable regulations for
reducing emissions because the EPA’s explanation
demonstrated that it considered the relevant data and factors
regarding emission levels. The panel also held that the action
was not in conflict with the court’s decision in El Comité
para el Bienestar de Earlimart v. Warmerdam, 539 F.3d
1062, 1073 (9th Cir. 2008).
The panel held that the EPA was not unreasonable in
finding that California’s assurances of compliance with
federal and state law pursuant to § 110(a)(2)(E) of the Clean
Air Act were adequate in light of an earlier Title VI civil
rights complaint filed with the EPA concerning volatile
organic compounds emissions in the San Joaquin Valley.
COUNSEL
Brent J. Newell (argued), Sofia Parino, Center on Race,
Poverty & the Environment, San Francisco, California, for
Petitioners.
Robert G. Dreher, Acting Assistant Attorney General, Dustin
J. Maghamfar (argued), Environmental Defense Section,
Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C.; Jefferson Wehling,
Office of Regional Counsel, Jan Tierney, Office of General
Counsel, United States Environmental Protection Agency,
Washington, D.C., for Respondents.
4 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
Rissa A. Stuart, Ann M. Grottveit, Katherine E. Underwood,
Kahn, Soares & Conway, LLP, Sacramento, California, for
Amicus Curiae Air Coalition Team.
OPINION
SCHROEDER, Senior Circuit Judge:
We deal with another phase of California’s efforts to
create a “Pesticide Element” for its State Implementation
Plan (“SIP”) that meets the requirements of the Clean Air
Act, 42 U.S.C. § 7401 et seq. This is a challenge by several
community organizations to the Environmental Protection
Agency’s (“EPA”) 2012 approval of revisions and additions
to California’s Pesticide Element relating to the reduction of
volatile organic compounds (“VOCs”), precursors of ozone,
in the San Joaquin and Ventura air basins.
In an earlier decision involving the Pesticide Element, we
held that certain of its commitments were not enforceable
emissions standards or limitations of the SIP that could be
challenged pursuant to § 304(a) of the Clean Air Act. El
Comité para el Bienestar de Earlimart v. Warmerdam,
539 F.3d 1062, 1073 (9th Cir. 2008). The EPA subsequently
approved revisions to California’s Pesticide Element, so this
is a suit pursuant to § 307(b) of the Clean Air Act, which
provides for review of agency action in approving a SIP.
There are three issues presented. The first is whether the
EPA was arbitrary and capricious in its interpretation of the
Pesticide Element’s commitment to reduce emissions by
certain levels. We hold that the EPA’s interpretation was
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 5
reasonable in light of the ambiguity in the Pesticide
Element’s plain language.
The second issue is whether the EPA reasonably
determined that the revisions fulfilled the commitment in the
original Pesticide Element to adopt enforceable regulations
for reducing emissions. We hold that the determination was
reasonable, because the EPA’s explanation demonstrates that
it considered the relevant data and factors regarding emission
levels. Further, the action was not in conflict with our
decision in Warmerdam. Because the revisions fulfilled
California’s original commitment, the EPA correctly
determined that it did not need to consider whether the
original commitment itself was enforceable.
The third issue is whether the EPA was unreasonable in
finding that California’s assurances of compliance with
federal and state law pursuant to § 110(a)(2)(E) of the Act
were adequate in light of an earlier Title VI civil rights
complaint filed with the EPA concerning VOC emissions in
the San Joaquin Valley. We hold that the EPA’s
determination was not unreasonable because it provided a
reasoned explanation for its actions which took into account
the EPA complaint, as well as the EPA’s own investigation,
and evidence of California’s subsequent compliance with a
settlement order.
We therefore deny the petition for review, with the hope
that our action will bring to an end litigation and
administrative proceedings over the Pesticide Element dating
back to 1994.
6 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
BACKGROUND
I. Statutory Background
The Clean Air Act (“CAA” or “Act”) directs the EPA to
establish national ambient air quality standards (“NAAQS”)
for pollutants that endanger public health or welfare.
42 U.S.C. § 7409. The CAA requires the states to submit
State Implementation Plans, or “SIPs,” showing how the
states will attain the NAAQS for the major air pollutants. Id.
§ 7410(a)(1). The EPA is tasked with determining whether
a SIP complies with the Act’s requirements. Id. § 7410(k)(3).
Once approved by the EPA, a SIP has the “force and effect of
federal law.” Safe Air for Everyone v. EPA, 488 F.3d 1088,
1091 (9th Cir. 2007).
A state must designate the areas within its boundaries as
either “attainment” or “nonattainment” depending on whether
they meet the NAAQS for a given pollutant. See 42 U.S.C.
§ 7407(d)(1)(A). SIPs covering nonattainment areas must
provide “enforceable emission limitations, and such other
control measures, means or techniques (including economic
incentives such as fees, marketable permits, and auctions of
emission rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to provide for
attainment” by the applicable deadline. Id. § 7502(c)(6). The
state is further required to provide “necessary assurances”
that no state or federal law would impede implementation of
the SIP or parts thereof. Id. § 7410(a)(2)(E).
These SIPs also must include an attainment
demonstration, to show through air quality modeling that the
SIP’s proposed control measures will ensure the areas timely
attain the ozone standard, id. § 7502(c)(1), and a reasonable
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 7
further progress demonstration, to show that the SIP will
reduce pollutant emissions by a specified percentage each
year until the attainment year. Id. § 7511a. States must
submit to the EPA for approval any proposed revisions to a
SIP. The Act’s “anti-backsliding” provision mandates that
the EPA “shall not approve a revision of a [SIP] if the
revision would interfere with any applicable requirement
concerning attainment and reasonable further progress . . . or
any other applicable requirement of this chapter.” Id.
§ 7410(l).
Approved SIPs are enforceable by citizens in federal court
under § 304(a) of the Act. Id. § 7604(a). Citizens’ suits are
limited to enforcing a SIP’s specific strategies, however, and
may not enforce its overall objectives or aspirational goals.
Bayview Hunters Point Cmty. Advocates v. Metro. Transp.
Comm’n, 366 F.3d 692, 701 (9th Cir. 2004). Under
§ 307(b)(1), 42 U.S.C. § 7607(b)(1), citizens may also
petition for review of the EPA’s rulemaking process. That is
the jurisdictional provision invoked in this case. Unlike the
citizen suit provision of § 304, which authorizes only actions
to review enforceable emission standards or limitations, see
Warmerdam, 539 F.3d at 1073, the provisions of § 307 allow
petitions for review of final EPA actions in approving an
implementation plan. Compare id. § 7604(a), with
§ 7607(b)(1).
II. Prior Proceedings
One of the air pollutants the CAA regulates is ozone,
which forms as a result of photochemical reactions between
volatile organic compounds (“VOCs”) and oxides of nitrogen
(“NOx”) in the atmosphere. 69 Fed. Reg. 23,858 (Apr. 30,
2004). As part of its 1994 SIP for attaining the ozone
8 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
NAAQS, California included a subsection known as the
“Pesticide Element,” which proposed strategies for reducing
VOC emissions from agricultural and commercial pesticide
use in five nonattainment areas.
As submitted, the Pesticide Element contained two
primary commitments. First, California committed “to
reduce volatile organic compound (VOC) emissions from
agricultural and commercial structural pesticide applications
by a maximum of 20 percent from the 1990 baseline emission
inventory to the year 2005.” The 1990 baseline was to be
established using 1991 VOC pesticide emission data, adjusted
to represent the 1990 base year. Second, California
committed that its Department of Pesticide Regulation
(“DPR”) would decide whether to adopt “additional
regulatory measures to ensure that reductions in pesticidal
VOC emissions are achieved” by 1997.
Several years of back and forth communication between
the EPA and California’s DPR ensued as the EPA sought to
satisfy itself that the Pesticide Element met the Act’s
requirements for approval. Specifically, the EPA asked
California to confirm that it committed to specific percentage
reductions on a linear basis from 1996 through 2005 in each
nonattainment area. It also requested that California specify
a more precise deadline for deciding whether additional
regulations were necessary to achieve those reductions.
California complied with these requests via
correspondence from state officials. In a May 1995 letter
known as the “Wells Memo,” the State said that it
“committed to adopt and submit to U.S. EPA by June 15,
1997, any regulations necessary to achieve the emissions
reductions from pesticides . . . .” The State further said in the
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 9
Wells Memo that it would achieve the following percentage
reductions in emissions, in the specific years for each area:
Reductions From 1990 Baseline
Ozone 1996 1999 2002 2005
Nonattainment
Area
Sacramento Metro 8% 12% 16% 20%
San Joaquin Valley 8% 12% 16% 20%
South Coast 8% 12% 16% 20%
Southeast Desert 8% 12% 16% 20%
Ventura 8% 12% 16% 20%
The EPA, in its proposed rulemaking, included the Wells
Memo as part of the Pesticide Element. Before the Pesticide
Element was formally approved, however, California
submitted corrections to the proposed rule. In a June 1996
letter known as the “Howekamp Letter,” California asked the
EPA to delete the Wells Memo’s table showing interim year
reductions in each area, stating that its “commitment is for a
20% reduction from 1990 levels by 2005 in each SIP area
. . . .” But the Howekamp Letter also stated that, for purposes
of the attainment and reasonable further progress
demonstrations required under the Act, the State “only took
credit” for the following reductions in each area’s attainment
year:
“SJV 1999 = 12%
Sac 2005 = 20%
10 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
Ven 2005 = 20%
SED 2007 = 20%
SC 2010 = 20%.”
The Howekamp Letter thus included references to both a 20%
and a 12% reduction in VOC emissions for the San Joaquin
Valley. On January 8, 1997, the EPA approved the Pesticide
Element, incorporating the Howekamp Letter by reference
(collectively the “1994 Pesticide Element”).
When the June 15, 1997 deadline arrived, California had
decided that no further regulations were necessary to ensure
emissions reductions under the Pesticide Element, so it had
adopted none. A coalition of community organizations led by
El Comité para el Bienestar de Earlimart, also a petitioner
here, then filed a citizens suit under § 304(a) of the Act to
enforce the 1994 Pesticide Element. See El Comité para el
Bienestar de Earlimart v. Helliker, 416 F. Supp. 2d 912 (E.D.
Cal. 2006). El Comité argued that California violated the
Pesticide Element’s enforceable emissions standards and
limitations, (1), by failing to adopt by June 15, 1997,
regulations necessary to ensure the interim and final VOC
emission reduction goals provided in the Wells Memo; and
(2), by using data other than the 1991 data specified in the
Pesticide Element to calculate the 1990 baseline inventory,
thereby manipulating the standard for measuring emissions to
avoid its obligation to adopt regulations. Id. at 916.
The district court partially granted El Comité’s motion for
summary judgment, holding that California had failed to
carry out its commitment in the Wells Memo to adopt
regulations by June 15, 1997. Id. at 933–35. It denied the
remainder of the motion, holding that the plaintiffs could not
challenge the baseline inventory as an enforceable emission
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 11
standard or limitation because it did not, on its own, “limit[]
the quantity, rate, or concentration of emissions of air
pollutants on a continuous basis.” Id. at 928 (quoting
42 U.S.C. § 7602(k)).
On appeal, our court reversed the district court in part. El
Comité para el Bienestar de Earlimart v. Warmerdam,
539 F.3d 1062, 1069 (9th Cir. 2008). We concluded that
there was no enforceable commitment to adopt regulations in
the Pesticide Element because the SIP did not include the
Wells Memo. Id. at 1069–72. California therefore could not
be in violation of the SIP, because, without the Wells Memo,
the Pesticide Element provided only a discretionary
commitment to decide “whether” to adopt additional
regulations by 1997. Id. at 1069.
We agreed with the district court that the baseline
inventory was not itself an emissions standard or limitation
that could be enforced. Id. at 1072–73. Because neither the
Wells Memo nor the baseline inventory provided an
enforceable emission standard or limitation, we concluded
that the district court lacked jurisdiction to review the claims
under § 304(a) of the Act. Id. at 1073.
After the Warmerdam decision established that the Wells
Memo was not a part of the Pesticide Element, El Comité
filed a petition for review in this court to challenge the EPA’s
1994 approval of the Pesticide Element on the ground it did
not contain any enforceable commitments. El Comité para el
Bienestar de Earlimart v. EPA, No. 08-74340 (9th Cir.) (“El
Comité I”). In light of a remand order in a related case, see
Ass’n of Irritated Residents v. EPA, 686 F.3d 668, 678 (9th
Cir. 2011), we remanded the petition to the EPA for it to
determine whether the “Pesticide Element has sufficiently
12 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
enforceable commitments to meet the Act’s requirements.”
El Comité I, No. 08-74340 (July 2, 2012 order). In the
meantime, however, California had been busy revising the
Pesticide Element as it pertained to Ventura and the San
Joaquin Valley.
In 2009, California submitted new SIP regulations and
revisions to the EPA for approval. The proposed “Fumigant
Regulations” limited allowable fumigant pesticide application
methods and use, established recordkeeping and reporting
requirements for all five nonattainment areas, and imposed a
fumigant cap in Ventura. Along with the Fumigant
Regulations, California submitted the Pesticide Emission
Reduction Commitment for the San Joaquin Valley (the “SIP
Revision”). The SIP Revision established a fixed limit of
18.1 tons per day (“tpd”) for fumigant emissions in the San
Joaquin Valley, and also provided a specific methodology to
establish the 1990 pesticide VOC emissions baseline level
and to evaluate compliance with the Pesticide Element.
In November 2012, the EPA approved the Fumigant
Regulations and the SIP Revision, and it responded to the
remand order in El Comité I. It determined that the Fumigant
Regulations, together with the SIP Revision, fulfilled the
Pesticide Element’s commitment to adopt enforceable
regulations to ensure the required emissions reductions.
Thus, the EPA concluded that there was no need to revisit its
approval of the original Pesticide Element to determine if the
earlier commitment to adopt regulations was enforceable. It
is the November 2012 final action that the petitioners now
challenge.
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 13
III. This Petition for Review
El Comité filed this petition under § 307(b)(1) of the Act,
42 U.S.C. § 7607(b)(1), seeking review of the EPA’s final
action approving the Fumigant Regulations and SIP Revision.
It advances three arguments. First, El Comité contends that
the Pesticide Element committed California to a 20%
reduction in emissions from 1990 levels in the San Joaquin
Valley, not a 12% reduction as the EPA interpreted the
documents, and thus the EPA should have considered
whether its approval of the Fumigant Regulations and SIP
Revision violated the Act’s anti-backsliding provision.
Second, it argues that the Fumigant Regulations and SIP
Revision do not fulfill the Pesticide Element’s original
commitment and thus the EPA unreasonably failed to
consider whether the Pesticide Element was enforceable per
the remand order. Lastly, El Comité contends the EPA failed
to secure necessary assurances from California that its
proposed rules would not violate Title VI of the Civil Rights
Act by exposing Latino schoolchildren to a disparate impact
from pesticide use.
This dispute requires us to consider, in the specific
circumstances surrounding the various permutations of
California’s Pesticide Element, whether the EPA’s actions
were arbitrary and capricious. See Sierra Club v. EPA,
671 F.3d 955, 961 (9th Cir. 2012). We conclude that on these
facts, the EPA was not arbitrary and capricious in construing
the Pesticide Element and approving the Fumigant
Regulations and SIP Revision.
14 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
ANALYSIS
I. The EPA Reasonably Construed the Pesticide
Element’s Ambiguous Language as Committing to a
12% Reduction in Emissions for the San Joaquin
Valley by 1999
Section 110(l) of the Act, the so-called anti-backsliding
provision, states that the EPA “shall not approve a revision of
a [SIP] if the revision would interfere with any applicable
requirement concerning attainment and reasonable further
progress . . . or any other applicable requirements of this
chapter.” 42 U.S.C. § 7410(l). When approving the SIP
Revision, the EPA found that the Pesticide Element
committed to a 12% reduction in emissions from 1990 levels
for the San Joaquin Valley by 1999. It therefore concluded
that the SIP Revision’s 18.1 tpd emissions cap, which
corresponds to a 12% reduction from 1990 levels, did not
weaken the existing commitment in violation of § 110(l).
El Comité contends that the plain language of the
Pesticide Element requires a 20% reduction in emissions
from 1990 levels in the San Joaquin Valley, not a 12%
reduction. Thus, it argues that the EPA failed to consider
whether the SIP Revision’s 18.1 tpd emissions cap would
weaken the existing SIP in violation of § 110(l).
The difficulty with this argument is that the Pesticide
Element’s commitment to reduce VOC emissions in the San
Joaquin Valley is ambiguous, because it refers to both a 12%
reduction and a 20% reduction. As approved, the Pesticide
Element includes both the Element itself and the Howekamp
Letter, which is incorporated by reference. The Pesticide
Element itself does not refer to the 20% emissions reduction
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 15
as a “commitment,” but only as a “goal” or “target.” The
Howekamp Letter, however, explicitly states that the
“commitment is for a 20% reduction from 1990 levels by
2005 in each SIP area . . . .” But the Howekamp Letter then
goes on to say that California is taking credit only for a 12%
reduction for the San Joaquin Valley in its 1999 attainment
year, and that the table from the Wells Memo showing a 20%
reduction by 2005 in that area is deleted. Additionally, the
spreadsheets attached to the Howekamp Letter, which it says
“identify the reductions that the State committed to achieve,”
show a 12% reduction in VOC emissions in 1999 for the San
Joaquin Valley. The Howekamp Letter thus creates
ambiguity because it is internally contradictory, referencing
both a 12% and 20% reduction commitment. Further, its
reference to a 20% commitment is inconsistent with the
Pesticide Element’s description of 20% as a “goal.”
Because the plain language of the relevant documents is
ambiguous, we defer to the EPA’s interpretation if it is
reasonable, i.e., if it “sensibly conforms to the purpose and
wording of the regulations.” Crown Pacific v. Occupational
Safety & Health Review Comm’n, 197 F.3d 1036, 1038 (9th
Cir. 1999) (internal quotation marks and citation omitted); see
also Safe Air, 488 F.3d at 1095–96.
After considering the Pesticide Element in its entirety, the
EPA concluded that it committed the State to a 12% reduction
in VOC emissions from 1990 levels in the San Joaquin Valley
by 1999, and that the 20% figure was not a commitment but
an aspirational goal. This interpretation is supported by the
Pesticide Element’s language, which repeatedly refers to the
20% reduction as a “goal” and “target,” and reserves
flexibility to adjust that goal. While the Howekamp Letter
does at one point state that the “commitment is for a 20%
16 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
reduction,” giving that language controlling effect would
require us to ignore both the reference to a 12% commitment
and the description of the 20% figure as a “goal.” “[O]ur task
is to interpret the regulation as a whole, . . . not to give force
to one phrase in isolation.” Bayview, 366 F.3d at 701
(quoting Campesinos Unidos, Inc. v. U.S. Dep’t of Labor,
803 F.2d 1063, 1069 (9th Cir. 1986)).
The EPA’s interpretation is also consistent with the
Pesticide Element’s purpose within the larger regulatory
scheme. The Pesticide Element, as a part of California’s SIP,
was designed to attain the ozone standards set by the Act. To
attain the ozone NAAQS by its 1999 deadline, the San
Joaquin Valley had to reduce VOC emissions at least 12%
from 1990 levels. We interpret the SIP “in light of the overall
statutory and regulatory scheme.” Bayview, 366 F.3d at 701
(quoting Campesinos Unidos, 803 F.2d at 1069). It therefore
makes sense to interpret the 12% reduction necessary to
achieve attainment as the Pesticide Element’s firm
commitment, with the more optimistic 20% reduction as an
aspirational goal. See Bayview, 366 F.3d at 702 (applying
similar reasoning to reject argument that a SIP measure,
which “was not a mandated condition precedent to NAAQS
attainment,” was an enforceable commitment).
El Comité points out that in the Howekamp Letter,
California said it was taking credit for a 12% reduction, and
argues that “taking credit” for a reduction and committing to
a reduction are two different things. Under the Act,
California’s SIP had to include an attainment demonstration
and reasonable further progress demonstration for the San
Joaquin Valley as an ozone nonattainment area. See
42 U.S.C. §§ 7502(c)(1), 7511a. El Comité thus contends
that the Howekamp Letter’s statement about “taking credit”
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 17
for a 12% reduction in 1999 merely clarified that for purposes
of those required demonstrations, California was not using
the 20% figure; instead, it was using the reduction percentage
each area was projected to achieve in its attainment year.
Because the San Joaquin Valley was the only area covered by
the Pesticide Element with an attainment year prior to 2005,
El Comité argues that the letter was being careful to take
credit only for a partial 12% reduction in the Valley’s
attainment demonstrations for 1999, not creating a different
commitment.
El Comité’s interpretation may be plausible, but it
requires us to read into the Howekamp Letter more than it
states. In light of the Pesticide Element’s ambiguous
language we must, in any event, give deference to the EPA’s
interpretation so long as it is reasonable. See Crown Pacific,
197 F.3d at 1038. The EPA’s interpretation is supported by
the language of the Pesticide Element and the documents
incorporated therein, and it also is consistent with the
California SIP’s overall regulatory purpose. We hold that the
EPA did not arbitrarily and capriciously fail to consider
whether the SIP Revision violated § 110(l) of the Act,
because it reasonably interpreted the Pesticide Element as
committing to a 12% reduction in VOC emissions from 1990
levels by 1999 in the San Joaquin Valley.
II. The EPA’s Determination That the Fumigant
Regulations and SIP Revision Satisfied the Pesticide
Element’s Commitment to Adopt Enforceable
Regulations Was Not Arbitrary and Capricious
The Pesticide Element committed California’s DPR to
decide by 1997 whether to adopt additional regulations to
ensure pesticide VOC emissions reductions of 12% in the San
18 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
Joaquin Valley and 20% in Ventura would be met. The
remand order in El Comité I instructed the EPA to consider
whether this commitment was enforceable. The EPA
concluded, however, that the question of enforceability was
irrelevant, since its intervening approval of the Fumigant
Regulations and SIP Revision fulfilled the Pesticide
Element’s commitment to adopt regulations ensuring the
requisite emissions reductions.
El Comité challenges the EPA’s conclusion that the
Fumigant Regulations and SIP Revision fulfilled the Pesticide
Element’s commitment, for two reasons. First, El Comité
claims that the Fumigant Regulations do not ensure that the
12% and 20% reductions will be met, because (a) they may
not assure compliance in years of high fumigant emissions;
and (b) they do not regulate non-fumigant VOC emissions,
which also vary from year to year. Second, it argues that the
SIP Revision, which provides an 18.1 tpd emission cap in the
San Joaquin Valley and commits to adopt regulations on non-
fumigant VOC emissions by 2014, is unenforceable and
therefore cannot help fulfill the Pesticide Element’s
commitment. These arguments are unavailing.
A. The EPA reasonably concluded that the Fumigant
Regulations are sufficient to meet the emissions
reductions required by the Pesticide Element.
We will set aside the EPA’s action only if it is arbitrary
and capricious. Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm
Mut. Auto Ins. Co., 463 U.S. 29, 42 (1983). While our review
under this standard is narrow, the EPA is required to
“examine the relevant data and provide a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choices made.’” Id. at 43
 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 19
(quoting Burlington Truck Lines v. United States, 371 U.S.
156, 168 (1962)). If the explanation reveals that the EPA’s
decision was based on a consideration of the relevant factors
and there has been no clear error of judgment, we will not
substitute our judgment for that of the EPA. Id.
The EPA has met its burden here. The EPA reasonably
concluded that the Fumigant Regulations were sufficient to
keep pesticide VOC emissions below required levels in
typical years based on projected emissions data. The EPA
did not overlook the fact that fumigant emissions vary from
year to year and thus fail to consider a critical part of the
problem, as El Comité claims it did. See Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43 (noting agency action may be arbitrary
and capricious if it overlooks an important aspect of the
problem). The EPA discussed variation in fumigant
emissions, explaining that even with variations, the data
reflected no violations of emissions limits in the years since
the regulations had been implemented in California. Thus,
the EPA had a reasonable basis for concluding year-to-year
variations in fumigant emissions were unlikely to interfere
with the required emissions reductions.
Nor is it critical that the Fumigant Regulations do not
regulate non-fumigant VOC emissions, even though such
emissions account for over 75% of total VOC emissions in
the San Joaquin Valley, and approximately 10% of total
emissions in Ventura. The Pesticide Element did not require
that all sources of VOC emissions be regulated; it merely
required that total emissions be reduced by 12% or 20% from
1990 levels. The EPA reasonably determined that the
Fumigant Regulations alone were sufficient to comply with
the emissions limits. It acknowledged, however, that in years
of historically high non-fumigant emissions, the limit might
20 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
be exceeded in the San Joaquin Valley. But it also concluded
that California’s commitment in the SIP Revision to adopt
non-fumigant regulations by 2014 sufficiently addressed this
possibility. The EPA’s determination that the rules were
sufficient to ensure the reductions was rational and related to
the facts, see Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, and
therefore was not arbitrary and capricious.
B. The EPA reasonably determined that the SIP
Revision is enforceable.
SIPs must contain enforceable emissions limitations and
control measures for attaining the NAAQS to receive EPA
approval under the Act. See 42 U.S.C. § 7410(a)(2). El
Comité argues the EPA erred by finding the SIP Revision
enforceable.
The SIP Revision establishes a fixed limit of 18.1 tpd of
fumigant emissions in the San Joaquin Valley, and provides
a methodology for establishing the 1990 emissions level
baseline to evaluate compliance with the Pesticide Element.
El Comité contends that the EPA violated our holding in El
Comité para el Bienestar de Earlimart v. Warmerdam,
539 F.3d 1062 (9th Cir. 2008), by concluding that the
inventory methodology rendered the 18.1 tpd emissions cap
enforceable. Since the emissions cap is equivalent to a 12%
reduction in emissions from 1990 levels, El Comité argues
that the SIP Revision changed the form, but not the substance,
of the Pesticide Element’s original unenforceable
commitment.
In Warmerdam, we held that a baseline inventory used to
calculate emissions levels was not itself an enforceable
emission standard or limitation for purposes of citizen suits
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 21
under § 304. Id. at 1072–73. In Warmerdam, however, the
baseline inventory was not tied to any emissions limit or
control measures, because this court found that the Wells
Memo had not been incorporated into the SIP. See id. at
1069–72. In the absence of the Wells Memo’s commitment
to determine whether regulations were necessary to achieve
specified emissions reductions, the inventory methodology
did not, on its own, “limit[] the quantity, rate, or
concentration of emissions of air pollutants on a continuous
basis.” See id. at 1072–73 (quoting 42 U.S.C. § 7602(k)). In
this case, the inventory methodology is tied to enforceable
emissions controls: the SIP Revision’s 18.1 tpd emissions cap
and the Fumigant Regulations. The EPA explained in the
final rule that it was interpreting these revisions collectively,
stating “[w]e cannot consider the 18.1 tpd emission limit for
the [San Joaquin Valley] as unrelated to the fumigant
regulations.” Thus, contrary to El Comité’s claims, the EPA
did not find the SIP Revision enforceable merely because it
included a method for calculating the inventory to evaluate
compliance. The EPA approved the SIP Revision emissions
cap and methodology for calculating inventory along with the
Fumigant Regulations’ control measures.
El Comité incorrectly asks us to consider the
enforceability of each individual component of the overall
scheme to regulate pesticide VOC emissions. Although the
Act does require a SIP to include enforceable control
measures, El Comité points to nothing in the Act that requires
each individual component of a SIP to be independently
enforceable. See 76 Fed. Reg. 26,609-01, 26,612 (May 9,
2011) (“SIPs contain many aspects which are not federally
enforceable emissions limitations. For example, approved
SIPs contain such items as current emissions inventories,
future emissions inventory projections based upon economic
22 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
and technological trends, and air quality modeling.”).
Warmerdam does not indicate otherwise, because it dealt with
a baseline inventory uncoupled from any emissions limitation
or control measure. See 539 F.3d at 1072–73.
Thus, it was reasonable for the EPA to conclude that the
Fumigant Regulations, together with the SIP Revision,
fulfilled the Pesticide Element’s commitment to adopt
regulations ensuring emissions levels were reduced by 12%
and 20% from 1990 levels in the San Joaquin Valley and
Ventura, respectively. It therefore was not arbitrary and
capricious for the EPA to decline to consider whether the
Pesticide Element’s original commitment was enforceable
under the remand order, because the newly approved rules
fulfilled that commitment regardless.
III. The EPA Did Not Arbitrarily and Capriciously
Determine That California Provided Necessary
Assurances
To meet the Act’s requirements for SIP approval, a state
must provide the EPA with “necessary assurances” that no
federal or state law prohibits the state from carrying out the
SIP or a portion thereof. 42 U.S.C. § 7410(a)(2)(E). In its
final rule approving the Fumigant Regulations and SIP
Revision, the EPA concluded that California provided such
assurances. El Comité argues the EPA’s determination was
arbitrary and capricious because the EPA failed adequately to
consider evidence El Comité submitted during the comment
period.
During the comment period on the proposed rules, El
Comité submitted evidence that it claimed showed a potential
violation of Title VI of the Civil Rights Act, 42 U.S.C.
EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA 23
§ 2000d et seq. Its claim rested on the EPA’s finding of a
Title VI violation in connection with an earlier administrative
complaint, referred to as the “Angelita C.” complaint. That
complaint was filed with the EPA’s Office of Civil Rights in
1999, when Latino parents and schoolchildren alleged that
schools with high percentages of Latino children were
disparately affected by DPR’s renewal of the registration for
fumigant pesticide methyl bromide. In response, the EPA
undertook a study of the effects of methyl bromide use from
1995 to 2001, applying an “exposure assessment and
disparity analysis.” The EPA concluded that its analysis
supported a preliminary finding of a prima facie Title VI
violation, and the EPA and DPR entered into a settlement
agreement in 2011.
To support its claim of a potential violation, El Comité
submitted the EPA’s analysis and findings in Angelita C. and
a copy of the 2011 settlement agreement, along with evidence
purportedly demonstrating that pesticide use had not gone
down since the EPA completed it’s study in 2001. The EPA
required California to respond.
In response, California submitted proof of its compliance
with the Angelita C. settlement, as well as reports indicating
the new rules would actually reduce overall pesticide
emissions and have no negative environmental impact. The
EPA determined that California satisfied its burden to provide
assurances of compliance with federal law.
El Comité now argues the EPA should have done more.
According to El Comité, the EPA should have undertaken a
study like the one it conducted in response to the 1999
complaint. El Comité effectively contends the EPA should
have evaluated California’s assurances the same way the EPA
24 EL COMITÉ PARA EL BIENESTAR DE EARLIMART V. EPA
would have to deal with a pending Title VI complaint setting
forth allegations of a current violation.
El Comité’s argument fails because it misconstrues the
EPA’s burden regarding the “necessary assurances”
requirement. The EPA has a duty to provide a reasoned
judgment as to whether the state has provided “necessary
assurances,” but what assurances are “necessary” is left to the
EPA’s discretion. NRDC, Project on Clean Air v. EPA,
478 F.2d 875, 890–91 (1st Cir. 1973); see also Motor Vehicle
Mfrs. Ass’n, 463 U.S. at 43 (providing that an agency’s
decision is not arbitrary and capricious if it considered the
relevant data and gave a satisfactory explanation for its
action).
The EPA obtained a response from California that
provided assurances of the state’s compliance with the
settlement agreement, and also provided reports on the effect
of the new rules. El Comité provided no proof of a current or
ongoing violation. It merely provided evidence of the earlier
violation, and pointed to continued pesticide use since that
time. The EPA explained that this evidence failed to draw
any connection between the proposed rules and a potential
disparate impact. The EPA fulfilled its duty to provide a
reasoned judgment because its determination was cogently
explained and supported by the record.
CONCLUSION
The Petition for Review is DENIED.