Case Nos. 09-71383 & 09-71404

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________________

ASSOCIATION OF IRRITATED RESIDENTS, et al.,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

AND

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

_____________________

Petitions for Review of Final Action of the United States Environmental

Protection Agency

____________________

BRIEF FOR RESPONDENTS

____________________

Of Counsel:

JEFFERSON L. WEHLING

U.S. EPA, Region IX

Office of Regional Counsel

JAN M. TIERNEY

U.S. EPA

Office of General Counsel

JOHN C. CRUDEN

Acting Assistant Attorney General

Environment & Natural Resources Div.

AUSTIN D. SAYLOR

United States Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 514-1880

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-iTABLE OF CONTENTS

STATEMENT OF JURISDICTION. ....... ....... ....... ....... ....... . 1

ISSUES PRESENTED FOR REVIEW........ ....... ....... ....... ...... 2

STATEMENT OF THE CASE. ....... ....... ....... ....... ....... ..... 3

STATEMENT OF FACTS. ....... ....... ....... ....... ....... ....... . 5

I. STATUTORY AND REGULATORY BACKGROUND. . . . . . . . . . . . . . . 5

A. The Clean Air Act and National Ambient Air Quality Standards. . . . 5

B. Nonattainment Areas. ....... ....... ....... ....... ....... . . 6

C. EPA Review of State Plans and Revisions.. . . . . . . . . . . . . . . . . . . . . 7

D. Sanctions and Federal Implementation Plans.. . . . . . . . . . . . . . . . . . . 8

E. “SIP Calls”. ....... ....... ....... ....... ....... ....... ... 9

F. Transportation Conformity. ....... ....... ....... ....... ..... 9

II. HISTORY OF OZONE REGULATION IN THE SOUTH COAST. . . . . . 11

A. The 1994 California Ozone SIP. ....... ....... ....... ....... 11

B. The 1997/1999 South Coast Ozone SIP. . . . . . . . . . . . . . . . . . . . . . . 12

C. The 2003 State Strategy and the 2003 South Coast AQMP.. . . . . . . 14

STANDARD OF REVIEW........ ....... ....... ....... ....... ....... 18

SUMMARY OF ARGUMENT........ ....... ....... ....... ....... .... 20

ARGUMENT........ ....... ....... ....... ....... ....... ....... .... 22

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-iiI. EPA HAS ALREADY APPROVED CALIFORNIA’S PLAN FOR

ATTAINMENT OF THE 1-HOUR OZONE STANDARD, AND HAS 

NO PRESENT DUTY TO REQUIRE A NEW ATTAINMENT

DEMONSTRATION........ ....... ....... ....... ....... ....... 22

A. Nothing in the CAA Required California to Submit a New 1-Hour

Ozone Attainment Demonstration in 2003, Nor is EPA Obliged to

Require One Now. ....... ....... ....... ....... ....... .... 25

1. Absent a finding by EPA that California’s SIP is “substantially

inadequate” to attain the NAAQS or otherwise comply with

the Act, EPA cannot require the State to submit a new

attainment demonstration. ....... ....... ....... ....... 26

2. The Act’s transportation conformity provisions do not compel

EPA to require a new attainment demonstration. . . . . . . . . . . 29

B. EPA’s Disapproval of the 2003 Plan’s 1-Hour Ozone Attainment

Demonstration Did Not Trigger a Duty for EPA to Promulgate a 

FIP or to Impose Sanctions........ ....... ....... ....... .... 33

II. THIS COURT LACKS JURISDICTION TO HEAR PETITIONERS’

“PESTICIDE ELEMENT” CLAIMS. ....... ....... ....... ....... . 39

A. Petitioners Lack Standing to Challenge EPA’s 2009 Approval of

PEST-1, the 2003 State Strategy’s Commitment to Maintain the

Status Quo With Respect to the Existing Pesticide Element. . . . . . . 39

1. Petitioners’ alleged injuries were not caused by EPA’s 2009

approval of PEST-1, the 2003 State Strategy’s commitment to

maintain the status quo with respect to the existing Pesticide

Element. ....... ....... ....... ....... ....... ....... 40

2. Vacatur and remand of EPA’s approval of PEST-1 would not

redress Petitioners’ alleged injuries. . . . . . . . . . . . . . . . . . . . . 43

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-iiiB. EPA’s Approval of the 2003 State Strategy’s Commitment to

Maintain the Status Quo With Respect to the Existing Approved

“Pesticide Element” Did Not Entail a Substantive Review of That

Element. ....... ....... ....... ....... ....... ....... ..... 45

III. EPA REASONABLY CONCLUDED THAT SCAQMD’S

SUPPLEMENTAL DEMONSTRATION SATISFIES THE

REQUIREMENT OF CAA SECTION 182(d)(1)(A) TO OFFSET ANY

GROWTH IN EMISSIONS FROM GROWTH IN VEHICLE MILES

TRAVELED OR NUMBERS OF VEHICLE TRIPS.. . . . . . . . . . . . . . . . . 47

A. CAA Section 182(d)(1)(A) Directs States to Submit TCMs to

Offset Any “Growth in Emissions” From Growth in VMT, But 

Does Not Require States to Offset VMT Growth Where Aggregate

Vehicle Emissions Do Not Increase. . . . . . . . . . . . . . . . . . . . . . . . . . 51

B. EPA Reasonably Concluded that SCAQMD’s Demonstration 

Satisfies the Requirement Under CAA Section 182(d)(1)(A) To 

Adopt TCMs to Offset Any Increase In Emissions From Growth 

In VMT....... ....... ....... ....... ....... ....... ...... 55

CONCLUSION. ....... ....... ....... ....... ....... ....... ....... . . 61

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-ivTABLE OF AUTHORITIES

FEDERAL CASES

Alaska Department of Environmental Conservation v. EPA, 

540 U.S. 461 (2004). ....... ....... ....... ....... ....... ....... 18

Allen v. Wright, 

468 U.S. 737 (1984). ....... ....... ....... ....... ....... ....... 39

Barnhart v. Walton, 

535 U.S. 212 (2002). ....... ....... ....... ....... ....... ....... 56

Bechtel Const., Inc. v. United Bhd. Of Carpenters & Joiners of Am.,

812 F.2d 1220 (9th Cir. 1987). ....... ....... ....... ....... ...... 35

Biodiversity Legal Foundation v. Badgley, 

309 F.3d 1166 (9th Cir. 2002). ....... ....... ....... ....... ...... 43

Casey v. Lewis, 

4 F.3d 1516 (9th Cir. 1993). ....... ....... ....... ....... ....... . 39

Chemical Manufacturers Association v. NRDC, 

470 U.S. 116 (1985). ....... ....... ....... ....... ....... ....... 20

Chevron U.S.A., Inc. v. NRDC, 

467 U.S. 837 (1984). ....... ....... ....... ....... ....... .... 19, 55

Citizens Against Ruining the Environment v. EPA, 

535 F.3d 670 (7th Cir. 2008). ....... ....... ....... ....... ....... 27

Citizens to Preserve Overton Park, Inc. v. Volpe, 

401 U.S. 402 (1971). ....... ....... ....... ....... ....... ....... 19

Clean Air Implementation Project v. EPA, 

150 F.3d 1200 (D.C. Cir. 1998). ....... ....... ....... ....... ..... 26

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-vCorley v. United States, 

129 S. Ct. 1558 (2009). ....... ....... ....... ....... ....... ..... 53

Cuevas-Gaspar v. Gonzales, 

430 F.3d 1013 (9th Cir. 2005). ....... ....... ....... ....... ...... 36

DaimlerChrysler Corp. v. Cuno, 

547 U.S. 332 (2006). ....... ....... ....... ....... ....... ....... 40

El Comité para el Bienestar de Earlimart v. Warmerdam, 

539 F.3d 1062 (9th Cir. 2008). ....... ....... ....... ....... ...... 42

General Motors Corp. v. United States, 

496 U.S. 530 (1990). ....... ....... ....... ....... ....... ....... 25

Gonzales v. Gorsuch, 

688 F.2d 1263 (9th Cir. 1982). ....... ....... ....... ....... ...... 44

Good Samaritan Hospital v. Shalala, 

508 U.S. 402 (1993). ....... ....... ....... ....... ....... ....... 38

Hall v. EPA, 

273 F.3d 1146 (9th Cir. 2001). ....... ....... ....... ....... .... 7, 24

Havasupai Tribe v. Robertson, 

943 F.2d 32 (9th Cir. 1991). ....... ....... ....... ....... ....... . 30

Leslie Salt Co. v. United States, 

55 F.3d 1388 (9th Cir. 1995). ....... ....... ....... ....... ....... 20

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992). ....... ....... ....... ....... ....... .... 40, 43

McCarthy v. Thomas, 

27 F.3d 1363 (9th Cir. 1994). ....... ....... ....... ....... ....... 38

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-viMotor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983). ....... ....... ....... ....... ....... ....... . 19

National Association of Homebuilders v. Defenders of Wildlife, 

551 U.S. 644 (2007). ....... ....... ....... ....... ....... ....... 35

Natural Resources Defense Council, Inc. v. Browner, 

57 F.3d 1122 (D.C. Cir. 1995). ....... ....... ....... ....... ...... 36

Natural Resources Defense Council v. EPA, 

526 F.3d 591 (9th Cir. 2008). ....... ....... ....... ....... ....... 38

Northwest Environmental Defense Ctr. v. BPA, 

117 F.3d 1520 (9th Cir. 1997). ....... ....... ....... ....... ...... 40

Railway Labor Executives Association v. Dole, 

760 F.2d 1021 (9th Cir. 1985). ....... ....... ....... ....... ...... 44

Safe Air for Everyone v. EPA, 

488 F.3d 1088 (9th Cir. 2007). ....... ....... ....... ....... ...... 25

Sierra Club v. Johnson, 

541 F.3d 1257 (11th Cir. 2008). ....... ....... ....... ....... ..... 27

Simon v. Eastern Ky. Welfare Rights Organization, 

426 U.S. 26 (1976). ....... ....... ....... ....... ....... ....... . 41

Small Refiner Lead Phase-Down Task Force v. EPA, 

705 F.2d 506 (D.C. Cir. 1983). ....... ....... ....... ....... ...... 19

State of Arizona v. Thomas, 

829 F.2d 834 (9th Cir. 1987). ....... ....... ....... ....... ....... 26

Summers v. Earth Island Institute, 

129 S. Ct. 1142 (2009). ....... ....... ....... ....... ....... ..... 40

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-viiUnion Electric Co. v. EPA, 

427 U.S. 246 (1976). ....... ....... ....... ....... ....... ....... . 7

Vigil v. Leavitt, 

381 F.3d 826 (9th Cir. 2004). ....... ....... ....... ....... ....... 18

Warth v. Seldin, 

422 U.S. 490 (1975). ....... ....... ....... ....... ....... ....... 39

FEDERAL STATUTES

5 U.S.C. § 706(2)(A). ....... ....... ....... ....... ....... ....... ..... 18

42 U.S.C. §§ 7401-7671q. ....... ....... ....... ....... ....... ....... . . 5

42 U.S.C. § 7401(a)(3). ....... ....... ....... ....... ....... ....... 35, 36

42 U.S.C. § 7407(a)........ ....... ....... ....... ....... ....... . . 6, 7, 37

42 U.S.C. § 7407(d)........ ....... ....... ....... ....... ....... ....... 6

42 U.S.C. §§ 7408-09. ....... ....... ....... ....... ....... ....... ..... 5

42 U.S.C. § 7408(f)(1)(A). ....... ....... ....... ....... ....... ....... . 48

42 U.S.C. § 7410(a)........ ....... ....... ....... ....... ....... ....... 6

42 U.S.C. § 7410(a)(1). ....... ....... ....... ....... ....... ....... .... 6

42 U.S.C. § 7410(a)(2). ....... ....... ....... ....... ....... ....... . 6, 28

42 U.S.C. § 7410(a)(2)(A)........ ....... ....... ....... ....... ....... . 22

42 U.S.C. § 7410(c)(1). ....... ....... ....... ....... ....... ....... .... 9

42 U.S.C. § 7410(c)(1)(A)........ ....... ....... ....... ....... ....... . 34

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-viii42 U.S.C. § 7410(c)(1)(A)-(B). ....... ....... ....... ....... ....... .... 34

42 U.S.C. § 7410(c)(1)(B)........ ....... ....... ....... ....... ..... 34, 35

42 U.S.C. § 7410(k)........ ....... ....... ....... ....... ....... ....... 8

42 U.S.C. § 7410(k)(3). ....... ....... ....... ....... ....... ....... .... 7

42 U.S.C. § 7410(k)(3)-(4). ....... ....... ....... ....... ....... ....... . 8

42 U.S.C. § 7410(k)(5). ....... ....... ....... ....... ... 9, 21, 25, 26, 27, 31

42 U.S.C. § 7410(l). ....... ....... ....... ....... ....... ....... ...... 24

42 U.S.C. § 7413. ....... ....... ....... ....... ....... ....... ....... . . 8

42 U.S.C. § 7502. ....... ....... ....... ....... ....... ....... ...... 6, 28

42 U.S.C. § 7502(d)........ ....... ....... ....... ....... ....... ...... 27

42 U.S.C. § 7506(c)........ ....... ....... ....... ....... ....... ...... 10

42 U.S.C. § 7506(c)(1). ....... ....... ....... ....... ....... ....... ... 32

42 U.S.C. § 7506(c)(2). ....... ....... ....... ....... ....... ....... 10, 32

42 U.S.C. § 7509(a)........ ....... ....... ....... ....... ....... . 8, 33, 34

42 U.S.C. § 7509(a)(1). ....... ....... ....... ....... ....... ....... .... 8

42 U.S.C. § 7509(b)........ ....... ....... ....... ....... ....... ....... 8

42 U.S.C. §§7511-11f. ....... ....... ....... ....... ....... ....... ..... 7

42 U.S.C. § 7511(a)(1). ....... ....... ....... ....... ....... ....... ... 12

42 U.S.C. § 7511a. ....... ....... ....... ....... ....... ....... ....... 28

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-ix42 U.S.C. § 7511a(b)(2). ....... ....... ....... ....... ....... ....... . . 37

42 U.S.C. § 7511a(c)(2)(A)........ ....... ....... ....... . . 11, 21, 22, 23, 32

42 U.S.C. § 7511a(d)(1)(A)........ ....... ....... ....... ..... 17, 22, 48, 61

42 U.S.C. § 7511a(e). ....... ....... ....... ....... ....... ....... ..... 11

42 U.S.C. §7607(b). ....... ....... ....... ....... ....... ....... ...... 18

42 U.S.C. § 7607(b)(1). ....... ....... ....... ....... ....... ....... .... 1

42 U.S.C. § 7607(d)........ ....... ....... ....... ....... ....... ...... 18

42 U.S.C. § 7607(d)(1)(A)-(V). ....... ....... ....... ....... ....... .... 18

42 U.S.C. § 7661d(b)(2). ....... ....... ....... ....... ....... ....... . . 27

CODE OF FEDERAL REGULATIONS

40 C.F.R. § 52.31........ ....... ....... ....... ....... ....... ....... . . 8

40 C.F.R. § 81.305........ ....... ....... ....... ....... ....... ....... . 3

40 C.F.R. § 93.101........ ....... ....... ....... ....... ....... ....... 10

40 C.F.R. §§ 93.108-93.115. ....... ....... ....... ....... ....... ...... 10

40 C.F.R. § 93.118........ ....... ....... ....... ....... ....... ....... 10

40 C.F.R. § 93.118(e). ....... ....... ....... ....... ....... ....... .... 16

40 C.F.R. § 93.118(e)(3). ....... ....... ....... ....... ....... ....... . . 11

40 C.F.R. § 93.118(e)(4). ....... ....... ....... ....... ....... ....... . . 11

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-xFEDERAL REGISTER

56 Fed. Reg. 56,694, 56,726 (Nov. 6, 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

58 Fed. Reg. 50,262, 50,265 (Sept. 27, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

60 Fed. Reg. 48,896, 48,898 (Sept. 21, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

62 Fed. Reg. 23,410, 23,417 (Apr. 30, 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

62 Fed. Reg. 35,100 (Jun. 30, 1997). ....... ....... ....... ....... ....... 56

65 Fed. Reg. 10,713, 10,716 (Feb. 29, 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

66 Fed. Reg. 57,247, 57,248-49 (Nov. 14, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . 56

73 Fed. Reg. 20,536, 20,547 (Apr. 16, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

LEGISLATIVE HISTORY

H.R. Rep. No. 101-490 at 242, reprinted in 2 A Legislative History of the Clean

Air Act Amendments of 1990 (Comm. Print 1993) at 3266. . . . . . . . . 50, 58

1 Legis. Hist. at 833........ ....... ....... ....... ....... ....... ...... 58

1 Legis. Hist. at 1006-07. ....... ....... ....... ....... ....... ....... . . 60

1 Legis. Hist. at 1304........ ....... ....... ....... ....... ....... . . 59, 60

2 Legis. Hist. at 3266-67. ....... ....... ....... ....... ....... ....... . . 58

4 Legis. Hist. at 4878........ ....... ....... ....... ....... ....... . . 60, 61

4 Legis. Hist. at 4879........ ....... ....... ....... ....... ....... ..... 61

5 Legis. Hist. at 8384........ ....... ....... ....... ....... ....... ..... 59

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-xiGLOSSARY OF ACRONYMS

AQMP Air Quality Management Plan

CAA Clean Air Act

CARB California Air Resources Board

EPA United States Environmental Protection Agency

FIP Federal Implementation Plan

MVEBs Motor Vehicle Emissions Budgets

NAAQS National Ambient Air Quality Standards

PER Petitioners’ Excerpts of Record

RER Respondents’ Excerpts of Record

SCAQMD South Coast Air Quality Management District

SIP State Implementation Plan

TCM Transportation Control Measure

VOC Volatile Organic Compounds

VMT Vehicle Miles Traveled 

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As discussed infra at 12, the “Pesticide Element” was a plan designed to reduce 1/

volatile organic compound (“VOC”) emissions from agricultural and commercial

structural pesticide applications, Petitioners’ Excerpts of Record (“PER”) 256, and

was among several measures in the 1994 California Ozone Plan that EPA

approved in 1997. RER 133. 

1

STATEMENT OF JURISDICTION

Petitioners challenge a March 10, 2009, action by the United States

Environmental Protection Agency (“EPA” or “Agency”) approving in part and

disapproving in part several revisions to the Los Angeles metropolitan area

portion of California’s state implementation plan for meeting air quality standards

for ozone under the Clean Air Act (“CAA” or “Act”). 

This Court has jurisdiction over these consolidated petitions (with one

exception noted below) pursuant to CAA section 307, 42 U.S.C. § 7607(b)(1),

which provides for review, “in the United States Court of Appeals for the

appropriate circuit,” of EPA action under the CAA “which is locally or regionally

applicable.” Petitioners timely filed their petitions in the appropriate circuit. With

the exception noted below, EPA does not contest Petitioners’ standing to

challenge EPA’s rulemaking.

Petitioners lack standing to challenge EPA’s March 10, 2009, action on the

so-called “Pesticide Element” because the agency’s action did not cause their 1/

alleged injuries, nor can their alleged injuries be redressed by a favorable ruling. 

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The submitted Pesticide Element did not differ from that which was already

included in the approved plan, and which would have continued in effect

regardless of whether EPA chose to approve or disapprove the new submission. 

Thus, EPA’s action could not have caused Petitioners’ alleged injuries, nor could

vacatur of EPA’s approval remedy those alleged injuries. The Court lacks

jurisdiction to hear these claims.

ISSUES PRESENTED FOR REVIEW

1. Whether EPA reasonably found that, because California already had

an approved attainment demonstration for the 1-hour ozone standard, EPA’s

disapproval of the State’s voluntarily-revised attainment demonstration did not

trigger a duty to promulgate a Federal Implementation Plan or impose sanctions.

2. Whether Petitioners have standing to challenge EPA’s approval of

California’s commitment to maintain the status quo with respect to the existing

Pesticide Element, as approved by EPA in 1997, and if so, whether EPA was

required to undertake a substantive review of the existing Pesticide Element.

3. Whether EPA reasonably interprets the Act to allow California to

comply with the offset requirement of CAA section 182(d)(1)(A) by showing

annual decreases in aggregate motor vehicle emissions through the attainment

year.

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The“South Coast” area is comprised of Orange County, the southwestern two2/

thirds of Los Angeles County, southwestern San Bernardino County, and western

Riverside County. See 40 C.F.R. § 81.305. 

3

STATEMENT OF THE CASE

A state implementation plan, or “SIP,” documents a state’s plan for

implementing, maintaining, and enforcing federal air quality standards in each air

quality control region within that state. SIPs, and revisions to them, must be

reviewed and approved by EPA before they become effective. On March 10,

2009, EPA issued a final rule approving in part and disapproving in part proposed

revisions to California’s SIP. These revisions included a revised slate of measures

to reduce emissions (“2003 State Strategy”), and a revised local ozone plan

updating various elements of an earlier-approved plan (“2003 South Coast Air

Quality Management Plan”). Both submissions included provisions specifically

targeting the Los Angeles-South Coast Air Basin Area (“South Coast”), an 2/

“extreme nonattainment area” for the 1-hour ozone standard under the Act. 

A SIP for an extreme 1-hour ozone nonattainment area must meet various

requirements under the Act, including the requirement to demonstrate attainment

by the applicable attainment date (i.e., 2010). More than eleven years ago, EPA

determined that the 1994 California Ozone SIP met this attainment demonstration

requirement for the 1-hour ozone standard for the South Coast. Respondents’

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Excerpts of Record (“RER”) 097. In 2000, EPA approved revisions to that ozone

attainment demonstration plan that the State chose, but was not required, to

submit. RER 146–47. This fully-approved attainment demonstration remains in

effect until EPA approves a SIP revision that modifies, replaces, or rescinds it. In

2004, California chose to submit revisions to the South Coast portion of the

California Ozone SIP, including revisions to the attainment demonstration and the

related control strategy for achieving the standard by 2010, and new motor vehicle

emissions budgets to ensure continued federal funding for transportation projects. 

See PER 010–011. Following California’s voluntary withdrawal of key measures

upon which the revisions relied, EPA ultimately approved only certain portions of

the submitted revisions and disapproved others. PER 001. Significantly, all the

elements that EPA disapproved, such as the 1-hour ozone attainment

demonstration, were discretionary revisions to previously-approved SIP elements,

which thus remained in effect. 

In their consolidated petitions for review, Petitioners challenge several

aspects of EPA’s action. First, they claim that, upon disapproving the revised

attainment demonstration, EPA should have required California to submit a new

plan demonstrating attainment of the 1-hour ozone standard. Second, Petitioners

assert that EPA’s approval of a particular state measure, the Pesticide Element,

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Ground-level ozone is not emitted directly into the air, but is formed through 3/

photochemical reactions in the atmosphere involving directly-emitted VOCs and

oxide x x s of nitrogen (“NO ”). VOC and NO are often referred to as ozone

precursor emissions.

5

was unlawful because it “lacks an enforceable commitment to adopt regulations,”

and that as a consequence “the Court should vacate EPA’s approval of the 2003

State Strategy.” Pet. Br. at 47. Finally, Petitioners claim that EPA acted contrary

to section 182(d)(1)(A) of the Act by finding that, because California showed that

aggregate motor vehicle emissions will decrease each year through the attainment

year of 2010, California was not required to submit transportation control

measures to offset growth in vehicle miles traveled. 

STATEMENT OF FACTS

I. STATUTORY AND REGULATORY BACKGROUND

A. The Clean Air Act and National Ambient Air Quality Standards

The Clean Air Act, 42 U.S.C. §§ 7401–7671q, establishes a comprehensive

program for controlling and improving the nation’s air quality through both state

and federal regulation. The Act requires EPA to establish National Ambient Air

Quality Standards (“NAAQS”) for air pollutants that it determines may reasonably

be anticipated to endanger public health or welfare. 42 U.S.C. §§ 7408–09. One

of the pollutants for which EPA has established NAAQS is ozone. The 1979 “1- 3/

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hour” ozone standard set the acceptable level for ozone in the ambient air at 0.12

parts per million, averaged over intervals of one hour. RER 001. 

Under the Act, States have the primary responsibility for ensuring that their

ambient air meets the NAAQS. 42 U.S.C. § 7407(a). Each State’s comprehensive

approach for attaining the NAAQS is set forth in a SIP that provides for the

implementation, maintenance and enforcement of the NAAQS in each “air quality

control region” within that State. 42 U.S.C. § 7410(a). Every SIP or SIP revision

must be adopted by the State after reasonable notice and hearing and must be

submitted to EPA for approval. 42 U.S.C. § 7410(a)(1). The general requirements

for SIPs are set forth in 42 U.S.C. § 7410(a)(2), and include enforceable emissions

limitations and other control mechanisms to meet the requirements of the CAA,

enforcement programs, and assurances of adequate personnel, funding and

authority to carry out the SIP. 

B. Nonattainment Areas

EPA initially designates various areas of the country as “attainment” or

“nonattainment,” depending on whether they met the NAAQS for a particular

pollutant. 42 U.S.C. § 7407(d). In addition to the general requirements set forth

in 42 U.S.C. § 7410(a)(2), SIPs for areas designated “nonattainment” for particular

pollutants, such as ozone, must include provisions as set forth in 42 U.S.C. § 7502. 

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The Act also contains specific requirements for ozone nonattainment areas,

which depend on the severity of the ozone problem in the area. 42 U.S.C. §§

7511–11f. Soon after these provisions were added as part of the 1990 CAA

Amendments, EPA published in the Federal Register a detailed guidance

document, referred to as the “General Preamble,” discussing how the Agency

expected these new requirements would be implemented. See RER 045–046. 

C. EPA Review of State Plans and Revisions

Under the Act, States have “the primary responsibility for formulating

pollution control strategies.” Union Elec. Co. v. EPA, 427 U.S. 246, 256 (1976);

see 42 U.S.C. § 7407(a) (the Act gives States the “primary responsibility for

assuring air quality” through SIPs). States are responsible for submitting their

plans to EPA for review, and they must “specify the manner” in which their plans

will achieve the NAAQS. 42 U.S.C. § 7407(a). SIPs need not be submitted as a

whole, but may be submitted piece-by-piece. Hall v. EPA, 273 F.3d 1146, 1159

(9th Cir. 2001) (“The Act provides for piecemeal submission of SIP revisions,

including attainment demonstrations”). Likewise, SIPs may be approved or

disapproved piece-by-piece. 42 U.S.C. § 7410(k)(3). 

EPA reviews the various SIP elements submitted by States at different times

and for different purposes. See Hall v. EPA, 273 F.3d at 1159. The Act sets forth

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8

specific time frames and procedures that apply to EPA’s review and action on state

submissions. 42 U.S.C. § 7410(k). Section 7410(k) authorizes EPA to: (1) fully

approve the plan; (2) partially approve and partially disapprove the plan; or (3)

conditionally approve the plan. Id. § 7410(k)(3)–(4). In addition, if a State fails to

submit a plan required by the Act, EPA may issue a finding of failure to submit. 

Id. § 7509(a)(1). Once approved, SIPs become enforceable as federal law. Id.

§ 7413. 

D. Sanctions and Federal Implementation Plans

EPA’s finding that a State failed to submit a required plan, or its

disapproval of a required plan, triggers a time period (known as the “sanctions

clock”) within which the State must either remedy the deficiency or face

consequences such as emissions offsets or highway funding sanctions. 42 U.S.C.

§ 7509(a); id. § 7509(b) (describing sanctions). Specifically, if the State fails to

make up for the deficiency within eighteen months, the emissions offset sanction

applies, and six months later, highway funding sanctions apply. Id.; 40 C.F.R. §

52.31. The sanctions continue until EPA determines that the State has remedied

the SIP deficiency.

Second, such a finding of failure to submit or disapproval also triggers a

time period (known as the “FIP clock”) by the end of which EPA must either

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9

approve a plan submitted by the State that meets the applicable requirements or 

promulgate a Federal Implementation Plan (“FIP”). 42 U.S.C. § 7410(c)(1). EPA

must promulgate the FIP within two years unless EPA approves a new plan

submission for which the finding or disapproval was made. Id. 

E. “SIP Calls”

Once EPA has fully approved a SIP as meeting the statutory requirements of

the Act, the State has no further obligation under the Act to otherwise address

those requirements. However, under CAA section 110(k)(5), 42 U.S.C.

§ 7410(k)(5), EPA may choose at any time to review an approved SIP. If, upon

review, EPA determines that the approved SIP is “substantially inadequate” to,

among other things, attain or maintain an air quality standard, then EPA “shall

require the State to revise the plan as necessary to correct such inadequacies.” 

This is known as a “SIP Call.” Thus, if EPA exercises its discretion to review an

approved SIP and finds it “substantially inadequate,” EPA must require the State

to correct the approved plan. 

F. Transportation Conformity

In the 1990 CAA Amendments, Congress responded to the air pollution

stemming from highway and transit projects by enacting revised “conformity”

requirements with which transportation plans and programs that contain

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transportation projects must comply. 42 U.S.C. § 7506(c). CAA section 176(c)

integrates the Act’s air quality planning process with the surface transportation

planning process. Generally, under these requirements the federal government

may not approve, accept or fund any transportation plan, program or project unless

it conforms to the applicable SIP. Id. § 7506(c)(2). 

EPA’s implementing regulations establish detailed criteria for determining

whether a transportation plan or project conforms to an applicable SIP. 40 C.F.R.

§§ 93.108–93.115. Each control strategy SIP (including attainment demonstration

SIPs) must identify the total allowable emissions consistent with meeting the

applicable statutory requirement, and must allocate that total among the various

types of sources. The specific allocation to highway and transit vehicle use and

emissions is referred to as the motor vehicle emissions budget, or “MVEB.” 40

C.F.R. § 93.101. Under EPA’s regulations, transportation agencies rely on

MVEBs, found adequate or approved by EPA, to make conformity determinations

for transportation plans and programs.

To avoid unnecessary disruption in highway and transit projects during the

period for EPA review of the submitted SIP, EPA regulations provide that EPA

may make preliminary “adequacy” determinations regarding MVEBs set forth

therein. See 40 C.F.R. § 93.118. EPA will determine “adequate” a budget

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included in a submitted (but not yet approved) SIP if certain criteria set forth at 40

C.F.R. § 93.118(e)(4) are met. A budget that has been determined to be

“adequate” must be used for conformity determinations. EPA’s adequacy

determination is based on a preliminary review of the SIP submittal, but after

further review EPA may declare the MVEB to be inadequate. 40 C.F.R.

§ 93.118(e)(3). Further, even if EPA finds MVEBs to be adequate, the SIP

submittal (and related MVEBs) could later be disapproved. 

II. HISTORY OF OZONE REGULATION IN THE SOUTH COAST

A. The 1994 California Ozone SIP

Substantial amendments to the CAA in 1990 set new planning requirements

and attainment deadlines for the NAAQS, including the 1-hour ozone standard. 

Among the new requirements was a mandate for certain nonattainment areas to

submit SIP revisions demonstrating attainment of the ozone standard by the

applicable attainment date. 42 U.S.C. § 7511a(c)(2)(A); id. § 7511a(e). An

“attainment demonstration” includes both a control strategy and air quality

modeling showing that the control strategy is sufficient to reduce emissions to

levels where violations of the NAAQS would not occur by the attainment date.

Pursuant to the Act as amended in 1990, EPA classified the South Coast

ozone nonattainment area as “extreme” for 1-hour ozone, with an attainment

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deadline of November 15, 2010. See 56 Fed. Reg. 56,694, 56,726 (Nov. 6, 1991);

42 U.S.C. § 7511(a)(1). In response, the California Air Resources Board

(“CARB”) submitted a SIP revision on November 15, 1994 (“1994 California

Ozone SIP”) that included, among many other elements, the attainment

demonstration for the South Coast “extreme” ozone nonattainment area. That

attainment demonstration relied upon photochemical modeling and the local

stationary source and transportation-related control strategy contained in the South

Coast Air Quality Management District’s (“SCAQMD’s”) 1994 South Coast Air

Quality Management Plan (“AQMP”), and also upon a state control strategy

focused on mobile sources, consumer products, and pesticide use. 

In 1997, EPA took final action to approve various elements of the 1994

California Ozone SIP, including the ozone attainment demonstration for the South

Coast and the state and local strategies upon which the demonstration relied. RER

130. The “Pesticide Element” was among the specific state measures approved by

EPA. Id. at 133. The Pesticide Element was designed to reduce VOC emissions

from agricultural and commercial structural pesticide applications. PER 256. 

B. The 1997/1999 South Coast Ozone SIP

After EPA approved the 1994 California Ozone SIP, including the 1994

South Coast AQMP, CARB submitted a revised South Coast AQMP to EPA on

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February 5, 1997. This 1997 South Coast AQMP was not federally required for

ozone, but was submitted to modify the commitments as set forth in the 1994

South Coast AQMP. Specifically, the SCAQMD sought to abandon, relax, or

postpone approximately 30 measures approved in the ozone SIP. See RER 137. 

The 1997 South Coast AQMP also included updated emissions inventories,

updated growth projections, and a revised ozone attainment demonstration. 

In 1999, EPA proposed approval of certain portions of the 1997 South

Coast AQMP and disapproval of certain other portions. Specifically, EPA

proposed disapproval of the changes to SCAQMD’s commitments as set forth in

the 1997 South Coast AQMP as an impermissible relaxation of previously

approved control strategies. See id. at 140. EPA also proposed to disapprove the

attainment demonstration in the 1997 South Coast AQMP, not because of

deficiencies in the photochemical modeling analysis, but because of its reliance on

the impermissibly relaxed SCAQMD control strategy. In its 1999 proposed rule,

EPA addressed the consequences of a final disapproval of the control strategy and

attainment demonstration in the 1997 South Coast AQMP: “As discussed above,

the partial disapproval of the ozone SIP revision does not trigger mandatory

sanctions under CAA section 179, since EPA’s approval of the 1994 South Coast

ozone plan with respect to the same requirements remains in force.” Id. at 144. 

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Later that same year, the SCAQMD amended the ozone portion of the 1997 South

Coast AQMP in response to EPA’s proposed action.

In 2000, EPA took final action to approve the emissions inventories and

ozone attainment demonstration in the 1997 South Coast AQMP, as amended in

1999. See RER 146–149. Upon this approval, the fully approved ozone

attainment demonstration for the South Coast consisted of the photochemical

modeling analysis from the 1997 South Coast AQMP, the SCAQMD control

strategy from the 1999 amendment to the 1997 South Coast AQMP, the state

control strategy from the 1994 California Ozone Plan, and certain transportationrelated control measures and commitments from the 1994 South Coast AQMP. 

Taken together as such, the approved South Coast ozone attainment plan is

referred to as the “1997/1999 South Coast Ozone SIP.”

C. The 2003 State Strategy and the 2003 South Coast AQMP

On January 9, 2004, CARB submitted two SIP revisions. First, CARB

submitted the “Final 2003 State and Federal Strategy for the California SIP”

(“2003 State Strategy”), which identified CARB’s regulatory agenda to reduce

ozone in all areas of California by 2010. As originally submitted, the 2003 State

Strategy was intended, in part, to update and entirely replace the state’s strategy

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In 2008, SCAQMD supplemented the 2003 AQMP with a demonstration

4/

showing aggregate motor vehicle emissions reductions each year from 2003

through 2010. PER 294.

15

(as set forth in the 1994 California Ozone SIP) for reducing ozone in the South

Coast. 

Second, CARB submitted the 2003 South Coast AQMP. Like the 1997 4/

South Coast AQMP, the 2003 South Coast AQMP was not a federally required

plan for ozone. The 2003 AQMP was submitted in light of new photochemical

modeling performed by the SCAQMD, purporting to show the need for additional

emissions reductions, and to establish new motor vehicle emissions budgets and

thereby avoid a transportation conformity lapse and associated federal funding

losses. PER 112–13. The revised attainment demonstration in the 2003 South

Coast AQMP relied upon additional SCAQMD control measures and

commitments, and also relied upon the commitments by the state in the 2003 State

Strategy. Later that year, EPA found the motor vehicle emissions budgets in the

2003 South Coast AQMP “adequate” for purposes of the Act’s transportation

conformity requirements, meaning they could be used for transportation planning

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Since that preliminary adequacy determination, these 1-hour ozone budgets have

5/

been superceded by 8-hour ozone budgets that EPA has found adequate. See RER

229, as corrected in RER 232. 

16

purposes even though EPA had not yet made a final decision whether to approve

or disapprove the two SIP revisions, see 40 C.F.R. § 93.118(e). See PER 310.5/

In 2008, prior to EPA action on the 2003 State Strategy, CARB withdrew

many of the Strategy’s key elements. PER 289–90. As a consequence, the only

remaining elements of the plan were commitments by state agencies to pursue

certain near-term defined control measures, and to continue implementation of the

Pesticide Element from the 1994 California Ozone SIP. See PER 012. CARB

also withdrew the transportation control measure element of the 2003 South Coast

AQMP. PER 296. 

On October 24, 2008, EPA proposed to approve what remained of the 2003

State Strategy and to approve in part, and to disapprove in part, the 2003 South

Coast AQMP. PER 008. With respect to the 2003 State Strategy, EPA explained: 

“We propose to approve the State’s commitments with respect to the near-term

defined measures, not as fulfilling any particular requirement under the CAA, but

as strengthening of the South Coast portion of the California SIP.” PER 014. A

specific control strategy, identified by the State as “PEST-1,” was among those

commitments proposed for approval by EPA. PEST-1 simply calls for continued

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implementation of the Pesticide Element approved by EPA in 1997. In the

proposed rule, EPA explained its proposed approval of PEST-1 as follows: “We

interpret our approval of this measure as maintaining the status quo with respect to

the existing pesticide strategy (i.e., the SIP will continue to reflect the strategy as

approved by EPA in 1997).” PER 013, n.1. 

With respect to the 2003 South Coast AQMP, EPA proposed to approve the

SCAQMD’s control strategy as SIP-strengthening, but proposed to disapprove the

attainment demonstration because of its reliance on various state commitments

originally included in the 2003 State Strategy but later withdrawn by CARB. PER

014–015. x EPA proposed to disapprove the VOC and NO motor vehicle emissions

budgets for ozone that it had previously found adequate because, given the

withdrawal by CARB of state commitments upon which the budgets were based,

“the plan revision as a whole does not provide for [reasonable further progress]

and attainment.” PER 018. 

EPA also proposed to approve the State’s demonstration that no

transportation control measures to offset growth in emissions from growth in

vehicle miles traveled or growth in the number of vehicle trips are required under

42 U.S.C. § 7511a(d)(1)(A). EPA’s proposed approval was based on the State’s

demonstration that there will be no such growth in emissions, and instead that

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Section 307(d) of the CAA, 42 U.S.C. § 7607(d), which specifies detailed 6/

procedures that EPA must follow for certain rulemakings, does not apply here

because the rulemaking at issue was not one listed in 42 U.S.C.

§ 7607(d)(1)(A)–(V). 

18

aggregate vehicle emissions will decline each year from the base year of the plan

through the attainment year of 2010. Id. 

EPA explained the consequences of its proposed partial disapproval: “No

sanctions clocks or FIP requirement would be triggered by our disapprovals, if

finalized, because the approved SIP already contains the plan elements that we are

proposing to disapprove. A disapproval of the revisions to the already-approved

elements would not alter the fact that the SIP already meets these statutory

requirements.” PER 019. On March 10, 2009, after consideration of public

comments on the proposed rule, EPA finalized action on the 2003 State Strategy

and 2003 South Coast AQMP as proposed. PER 001. 

STANDARD OF REVIEW

A challenge to EPA action under section 307(b) of the CAA, 42 U.S.C. §

7607(b), is reviewed under the well-established “arbitrary and capricious”

standard of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).6/

See Alaska Dep’t of Envt’l Conservation v. EPA, 540 U.S. 461, 496–97 (2004);

Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir. 2004). This standard “is narrow and a

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court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.

Ass’n, Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Indeed, an

agency’s determinations must be upheld if they “conform ‘to certain minimum

standards of rationality.’” Small Refiner Lead Phase-Down Task Force v. EPA,

705 F.2d 506, 521 (D.C. Cir. 1983) (citation omitted). 

An agency action is arbitrary and capricious only “if the agency has relied

on factors which Congress has not intended it to consider, entirely failed to

consider an important aspect of the problem,” offered an explanation for its

decision that runs counter to the evidence before the agency, or is so implausible

that it could not be ascribed to a difference in view or the product of agency

expertise. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. A reviewing court may not

set aside agency action merely because the court would have decided the issue

differently, so long as the agency has considered the relevant factors and offered a

rational explanation for its action. Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 416 (1971). 

Questions of statutory interpretation are governed by the two-step test set

forth in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43 (1984). Under the

first step, the reviewing court must determine “whether Congress has directly

spoken to the precise question at issue.” Id. at 842. If congressional intent is clear

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20

from the statutory language, the inquiry ends. Id. at 842–43. If the statute is silent

or ambiguous on the particular issue, the Court must accept the agency’s

interpretation if it is reasonable; the agency’s interpretation need not represent the

only permissible reading of the statute nor the reading that the Court might

originally have given it. Id. at 843 & n.11; Chemical Mfrs. Ass’n v. NRDC, 470

U.S. 116, 125 (1985); see also Leslie Salt Co. v. United States, 55 F.3d 1388, 1394

(9th Cir. 1995). 

SUMMARY OF ARGUMENT

The Court should deny the petitions because EPA’s actions were reasonable

and consistent with the Clean Air Act. 

First, upon disapproving the 2003 South Coast AQMP’s 1-hour ozone

attainment demonstration, EPA was not obliged to require a new attainment

demonstration, to start sanctions clocks, or to develop a FIP. The Act provides a

specific process, a “SIP call,” by which EPA may mandate revisions to approved

SIPs. The SIP call process is initiated when EPA exercises its discretion to review

an existing, approved SIP. At issue here is EPA’s review of a new submission

from the State, and EPA’s review of that submission did not entail a review of the

adequacy of the existing SIP. Thus, because EPA’s review of the new submission

did not involve review of the adequacy of the existing SIP, there was no basis for

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issuing a SIP call, which is the sole means for requiring a State to submit a new

SIP for an obligation that it has already fulfilled. Petitioners cannot compel a SIP

call under any circumstances, particularly where, as here, the existing SIP was not

under review. Because EPA has already approved the ozone attainment

demonstration for the South Coast (i.e., the 1997/1999 South Coast Ozone SIP),

California has met the applicable requirement in section 182(c)(2)(A) of the CAA,

42 U.S.C. § 7511a(c)(2)(A). Only a determination by EPA under CAA section

110(k)(5), 42 U.S.C. § 7410(k)(5), that the approved SIP is “substantially

inadequate” – a finding that has not been made – could trigger an obligation for

the state to submit a new 1-hour ozone attainment demonstration. Because the

CAA does not require States to periodically revise their attainment demonstrations

even where the State decides that a revision is warranted, EPA’s disapproval of the

State’s discretionary submission of a new attainment demonstration did not trigger

any requirement to impose sanctions or promulgate a FIP. 

Second, Petitioners lack standing to challenge EPA’s approval of PEST-1, a

specific strategy included in the 2003 State Strategy. EPA’s action with respect to

PEST-1 in the 2009 rulemaking did not cause, nor could a favorable ruling by this

Court redress, Petitioners’ alleged injuries because PEST-1 did not modify the

existing Pesticide Element in the approved SIP. Because the Pesticide Element

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22

was already part of the approved SIP that the State was required to implement, it

would have remained in effect whether EPA approved or disapproved the State’s

2003 commitment to continue implementing that program.

Finally, EPA reasonably interpreted section 182(d)(1)(A) of the CAA, 42

U.S.C. § 7511a(d)(1)(A), which requires States only to adopt transportation

control measures (“TCMs”) to “offset any growth in emissions” from growth in

vehicle miles traveled or numbers of vehicle trips; it does not require California to

submit such offsetting TCMs where the State demonstrates, as California did here,

that aggregate motor vehicle emissions will decrease each year through the

attainment year. 

ARGUMENT

I. EPA HAS ALREADY APPROVED CALIFORNIA’S PLAN FOR

ATTAINMENT OF THE 1-HOUR OZONE STANDARD, AND HAS

NO PRESENT DUTY TO REQUIRE A NEW ATTAINMENT

DEMONSTRATION

The Clean Air Act requires that SIPs provide for attainment of the NAAQS. 

42 U.S.C. § 7410(a)(2)(A). In 1990, Congress amended the CAA to require States

to submit to EPA, in the form of a SIP revision, “[a] demonstration that the [SIP],

as revised, will provide for attainment of the ozone [NAAQS] by the applicable

attainment date.” Id. § 7511a(c)(2)(A). To comply with this mandate, California

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For “extreme” 1-hour ozone nonattainment areas such as the South Coast, CAA 7/

section 181(a) sets November 15, 2010 as the outside deadline for attainment of

the 1-hour ozone NAAQS.

23

submitted a SIP revision in 1994 that included an attainment demonstration for the

South Coast for the 1-hour ozone NAAQS. EPA approved that attainment

demonstration in 1997, RER 097, upon finding that it provided for attainment of

the 1-hour ozone NAAQS by 2010. California later chose to amend portions of 7/

the previously-approved ozone attainment demonstration, and EPA approved that

revised demonstration in 2000. RER 146. 

In 2003, California again chose to amend its 1-hour ozone attainment

demonstration for the South Coast. In the March 10, 2009, rulemaking at issue in

these petitions, EPA disapproved this new attainment demonstration because

control measures in the 2003 State Strategy upon which that demonstration relied

had been withdrawn by the State in early 2008. Absent these control measures,

EPA determined that the newest attainment demonstration could not meet the

requirements of CAA section 182(c)(2)(A), 42 U.S.C. § 7511a(c)(2)(A). 

However, EPA explained that because the already-approved attainment

demonstrations remained in effect, disapproval of the 2003 attainment

demonstration did not trigger a requirement to promulgate a FIP or to impose

sanctions. 

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The provision governing EPA review of SIP revisions is 42 U.S.C. § 7410(l). 8/

This section bars EPA from approving a SIP revision if the “revision would

interfere with any applicable requirement concerning attainment and reasonable

further progress . . . or any other applicable requirement” of the Act. This places

no burden on EPA to perform a review of the approved SIP to determine its

adequacy; rather, EPA’s obligation is to review the SIP, as the State wishes to

revise it, to determine whether the revised plan will interfere with attainment or

another applicable requirement. See generally, Hall v. EPA, 273 F.3d at 1159

(vacating and remanding EPA’s approval of a SIP revision because EPA failed to

explain why the revision did not interfere with CAA requirements enacted since

the program had previously been revised). Here, the submitted revision included a

wholesale replacement of the 1-hour ozone attainment demonstration in the

(continued...)

24

Petitioners contend that the attainment demonstration in the 2003 South

Coast AQMP was “not discretionary,” Pet. Br. at 36, and that upon disapproving

the 2003 AQMP’s attainment demonstration EPA should have required California

to submit a new attainment demonstration. Petitioners argue that EPA had a duty

to require a new attainment demonstration in light of “new information” indicating

that the previously-approved attainment demonstration was “ineffective” and

“patently out of date.” Pet. Br. at 35–36. These arguments must fail, because the

attainment demonstration in the 2003 South Coast AQMP was not required under

the CAA, and the State’s submittal of a new plan does not trigger an obligation for

EPA to review the existing approved SIP. Rather, EPA’s obligation with respect

to a SIP revision is limited to reviewing that submittal for compliance with the

CAA. Only upon finding that an approved SIP is “substantially inadequate”

8/

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(...continued) 8/

existing SIP, and EPA met section 110(l) by disapproving the plan because the

state withdrew much of the state strategy intended to provide the emissions

reductions that it believed to be necessary based on the updated photochemical

modeling analysis. Thus, the submitted attainment demonstration did not meet the

“applicable requirement” of demonstrating attainment of the 1-hour ozone

standard. 

25

under 42 U.S.C. § 7410(k)(5) would EPA have authority to require a State to

revise an approved SIP. The rulemaking at issue in this case did not involve any

such finding or review. EPA has no current obligation to require the State to

submit a new attainment demonstration. 

A. Nothing in the CAA Required California to Submit a New 1-Hour

Ozone Attainment Demonstration in 2003, Nor is EPA Obliged to

Require One Now

California’s SIP has a federally-approved 1-hour ozone attainment

demonstration for the South Coast: the 1997/1999 South Coast Ozone SIP, which

replaced part of the earlier-approved attainment demonstration from the 1994

South Coast AQMP. This approved demonstration remains in effect unless and

until EPA approves a SIP revision (or promulgates a FIP) that modifies, replaces,

or rescinds it. See General Motors Corp. v. United States, 496 U.S. 530, 541

(1990) (the “approved SIP is the applicable implementation plan during the time a

SIP revision proposal is pending”); Safe Air for Everyone v. EPA, 488 F.3d 1088,

1097 (9th Cir. 2007) (a SIP approved by EPA cannot be changed “unless and until

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26

EPA approve[s] any change”) (emphasis added). Petitioners’ desire for an

updated plan cannot upset this statutory regime. 

1. Absent a finding by EPA that California’s SIP is

“substantially inadequate” to attain the NAAQS or

otherwise comply with the Act, EPA cannot require the

State to submit a new attainment demonstration.

 EPA is required to mandate SIP revisions only after it exercises its

discretion to review an approved SIP and finds that the approved SIP is

“substantially inadequate to attain or maintain the [NAAQS] . . . or to otherwise

comply with any requirement of [the CAA].” 42 U.S.C. § 7410(k)(5). This action

by EPA, a “SIP call,” is “[t]he proper EPA response to implementation failures

(i.e. failures to attain the NAAQS).” State of Arizona v. Thomas, 829 F.2d 834,

836 (9th Cir. 1987). A SIP call is the sole means specified in the CAA by which

EPA can command a State to revise an approved SIP. See 42 U.S.C. § 7410(k)(5)

(outlining the “SIP call” procedure); Clean Air Implementation Project v. EPA,

150 F.3d 1200, 1207 (D.C. Cir. 1998) (explaining that requiring States to change

their SIPs “can only occur through an independent procedure known as a ‘SIP

call’”). 

A SIP call is an “extensive regulatory process,” under which EPA requires a

State to revise its SIP and the public is given a chance to comment. Clean Air

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27

Implementation, 150 F.3d at 1207; see 42 U.S.C. § 7502(d) (revisions required in

nonattainment areas in response to EPA finding under section 110(k)(5)). EPA

has not invoked this process for the South Coast 1-hour ozone attainment

demonstration in the 1997/1999 South Coast Ozone SIP, nor may Petitioners

compel it. Whether the EPA Administrator should choose to review a SIP and

make a finding of “substantial inadequacy,” which would mandate an EPA call for

corrective SIP revisions, is wholly within the Administrator’s discretion. See 42

U.S.C. § 7410(k)(5) (specifying that EPA may issue a SIP call “[w]henever the

Administrator finds that the applicable [SIP] . . . is substantially inadequate . . .”)

(emphasis added); cf. Sierra Club v. Johnson, 541 F.3d 1257, 1265 (11th Cir.

2008) (construing 42 U.S.C. § 7661d(b)(2) (“The Administrator shall issue an

objection [to a Title V permit]. . . if the petitioner demonstrates to the

Administrator that the permit is not in compliance with the requirements of [the

Clean Air Act] . . .”), to allow EPA discretion to determine what such a citizen

petition must show in order to make an adequate “demonstration”); Citizens

Against Ruining the Env’t v. EPA, 535 F.3d 670, 677 (7th Cir. 2008) (same). 

Ignoring the “SIP call” process entirely, Petitioners contend that EPA

should have required a new attainment demonstration because Petitioners believe

the “assumptions underlying the 1997/1999 Plan are no longer valid,” and that “as

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a result of . . . new information, we know that the old 1997/1999 Plan is not going

to work as envisioned.” Pet. Br. at 36. In support of these assertions, Petitioners

point to “updated demographic data, new air quality data, and information on

estimating motor vehicle emissions.” Pet. Br. at 35. However, Petitioners’

arguments that the 1997/1999 South Coast Ozone SIP is now “outdated” and

“ineffective” are not equal to an EPA finding that the SIP is “substantially

inadequate.” A SIP is a complex, multi-faceted set of obligations. See 42 U.S.C.

§ 7410(a)(2) (setting forth basic SIP elements for all SIPs); id. § 7502 (setting

forth additional requirements for nonattainment areas); id. § 7511a (setting forth

additional prescribed elements for ozone nonattainment areas based on the area’s

classification). The existence of new, updated, or different information does not

mean that the SIP is “substantially inadequate” for one or more of the purposes

identified under CAA section 110(k)(5). Such a determination can only be made

by EPA after EPA exercises its discretion to review the existing, approved SIP as a

whole. Petitioners point to nothing in the CAA directing EPA to perform a review

of the approved SIP or to otherwise require a new attainment demonstration “in

light of significant new information,” Pet. Br. at 35. Nor do Petitioners explain

how the Agency could lawfully do so without first exercising its discretion to

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review the approved SIP, as a whole, and making a threshold determination under

CAA section 110(k)(5) that the SIP is “substantially inadequate.” 

Absent action by EPA to initiate review of the approved SIP, which might

lead to a “SIP call,” California’s approved attainment demonstration remains

valid. Petitioners’ claims seeking EPA to require a new attainment demonstration

must be denied. 

2. The Act’s transportation conformity provisions do not

compel EPA to require a new attainment demonstration.

In their brief, Petitioners raise for the first time a novel theory in support of

their contention that a new 1-hour ozone attainment demonstration is required for

the South Coast. See Pet. Br. 36–39. In the wake of the California’s withdrawal

of key portions of the 2003 State Strategy upon which the attainment

demonstration in the 2003 South Coast AQMP relied, EPA disapproved that

discretionary submittal’s 1-hour ozone attainment demonstration (and related

MVEBs). See PER 006. Petitioners appear to argue that EPA should have

required a new attainment demonstration because: the State chose to submit new

MVEBs to avoid a lapse in federal funding for transportation projects, EPA made

an initial determination in 2004 that those MVEBs were “adequate,” and

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transportation agencies subsequently relied on the MVEBs to approve

transportation plans and related highway and transit projects. Pet. Br. 38–39. 

First, Petitioners waived this argument by failing to raise it during the public

comment period on EPA’s October 24, 2008, proposed action, and the Court

should decline to hear it. Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.

1991) (“[a]bsent exceptional circumstances,” issues not raised during the public

comment period “may not form a basis for reversal of an agency decision”). The

sole comments addressing MVEBs challenged EPA’s contention that

transportation conformity determinations are no longer required for the 1-hour

ozone standard because EPA has revoked the 1-hour ozone standard and because

EPA has found 8-hour ozone MVEBs for the South Coast to be “adequate” for

transportation conformity purposes. PER 096–097. 

However, even were this argument properly before the Court, Petitioners

have failed to identify any provision in the Act’s conformity provisions or EPA’s

regulations that compels EPA to require the State to submit a new attainment

demonstration where MVEBs associated with a SIP were found “adequate” and

used for a period time, but ultimately disapproved. At best (though they do not

cite the CAA’s “SIP call” provision), Petitioners’ argument appears to be that

EPA’s ultimate disapproval of these budgets after a period of reliance by

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In the preamble to a 2004 final rule on transportation conformity, EPA explained 9/

that conformity determinations made during a period in which the budget was

determined to be adequate would remain valid even if the SIP and associated

budget were subsequently disapproved. RER 191-192. EPA further explained

that the “iterative nature” of the conformity process (i.e., recurring conformity

demonstrations) will ensure that transportation planning is consistent with the

SIP’s goals for attaining and maintaining the NAAQS. This is because these new

determinations would need to be made consistent with any new budgets (which

would account for past planning activities), or with the interim emissions test

established in EPA’s regulations where no budgets are available (as a result of

subsequent disapproval). Id. at 191. Thus, it would be incorrect to assume that

use of a budget that is ultimately disapproved necessarily renders the currentlyapproved SIP “substantially inadequate” within the meaning of 42 U.S.C.

§ 7410(k)(5). 

31

transportation agencies, renders the approved SIP “inadequate” within the

meaning of section 110(k)(5), and thus EPA is now obligated to “call” the SIP. 

However, as explained above, only when EPA exercises its discretion to review

the whole SIP and finds it “substantially inadequate” does the obligation to “call”

the SIP trigger. While the use for a period of time of budgets that were ultimately

disapproved might be a relevant factor in any such review, it is only one factor.9/

As explained above, discretion lies with EPA to undertake such review, and EPA

has not chosen to do so. Since EPA has not made a finding that the approved SIP

is “substantially inadequate” within the meaning of CAA section 110(k)(5), there

is no basis to require the State to submit a new attainment demonstration SIP. 

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The Act’s transportation conformity provisions aim to ensure that federal

funding and approval go only to those transportation projects that are consistent

with the statute’s goals. See 42 U.S.C. § 7506(c)(1), (2). That California chose to

submit new MVEBs because it desired “to avoid a transportation conformity lapse

and associated federal funding losses,” PER 113, is irrelevant to whether EPA has

an obligation under the CAA to require a new attainment demonstration. Nor does

it follow that because EPA made a preliminary determination in 2004 that the

MVEBs in the 2003 South Coast AQMP were “adequate” (i.e., “provid[ed] for

progress and attainment of the 1-hour ozone . . . NAAQS,” PER 310), and because

transportation agencies subsequently relied on these MVEBs in approving various

highway and transportation projects, that EPA was obliged, upon ultimately

disapproving the MVEBs, to require California to submit a new 1-hour ozone

attainment demonstration. 

None of these things – not California’s choice to submit these MVEBs, not

EPA’s initial “adequacy” determination, and not subsequent use of these MVEBs

by transportation agencies – changed the State’s discretionary 2003 1-hour ozone

attainment demonstration into a “required” submittal. The CAA “requirement” is

to provide a 1-hour ozone attainment plan, 42 U.S.C. § 7511a(c)(2)(A), and EPA

had already found that the attainment demonstration in the 1994 South Coast

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AQMP (as later revised through approval of the 1997/1999 South Coast Ozone

SIP) fully satisfied that requirement. 

B. EPA’s Disapproval of the 2003 Plan’s 1-Hour Ozone Attainment

Demonstration Did Not Trigger a Duty for EPA to Promulgate a

FIP or to Impose Sanctions

Petitioners argue that EPA must promulgate a FIP because it disapproved

the 2003 South Coast AQMP’s 1-hour ozone attainment demonstration. Pet. Br. at

33. This is not correct. The 2003 South Coast AQMP’s 1-hour ozone attainment

demonstration was a discretionary revision to the previously-approved, still-ineffect attainment demonstration in California’s SIP. Because California already

had a full-approved 1-hour ozone attainment demonstration SIP as required under

the Act, EPA’s disapproval of the 2003 Plan’s attainment demonstration did not

trigger an obligation to promulgate an attainment demonstration FIP under CAA

section 110(c)(1)(B), 42 U.S.C. § 7410(c)(1)(B), or to impose sanctions under

CAA section 179(a), 42 U.S.C. § 7509(a). EPA has consistently interpreted the

Act not to require EPA to promulgate a FIP or to impose sanctions upon

disapproving a discretionary SIP revision such as the 1-hour ozone attainment

demonstration in the 2003 South Coast AQMP. 

EPA’s statutory obligation to promulgate FIPs is only triggered when: 1)

EPA “finds that a State has failed to make a required submission . . . ,” emphasis

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added, or 2) EPA “disapproves a State implementation plan submission in whole

or in part.” 42 U.S.C. § 7410(c)(1)(A)–(B). Similarly, mandatory sanctions apply

only with respect to “any implementation plan or plan revision required under

[Part D of Title I of the Act].” 42 U.S.C. § 7509(a) (emphasis added). 

FIP and sanctions obligations are thus triggered only when a State fails to

meet a statutory SIP requirement, and here California had met the applicable

requirements – EPA’s disapproval of California’s discretionary SIP revisions did

not alter that status. As explained above, EPA fully approved the South Coast’s 1-

hour ozone attainment demonstration on January 8, 1997, and subsequently fully

approved discretionary revisions to this plan on April 10, 2000. California was

under no further statutory or regulatory obligation to submit revisions to this fully

approved plan. Thus, the new attainment demonstration at issue in this case was

submitted at California’s discretion, and was not “required” within the meaning of

42 U.S.C. §§ 7410(c)(1)(A) (FIP) or 7509(a) (sanctions). 

Petitioners also invoke 42 U.S.C. § 7410(c)(1)(B), which specifies that EPA

must promulgate a FIP within 2 years when it “disapproves a [SIP] submission in

whole or in part.” Pet. Br. at 34. Although this provision does not on its face refer

only to “required” SIP submissions, EPA views this limitation as implicit in that

the required submission referred to in 42 U.S.C. § 7410(c)(1)(A) in connection

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with State failures to submit is the same type of submission referred to in 42

U.S.C. § 7410(c)(1)(B) in connection with disapprovals. Read “in . . . context and

with a view to [its] place in the overall statutory scheme,” Nat’l Ass’n of

Homebuilders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007), the provision

requires EPA to promulgate a FIP within two years only after disapproving a

required SIP revision. Using traditional tools of statutory construction, to read the

provision to apply where EPA disapproves a discretionary SIP revision would

yield absurd results, because it would require the agency to promulgate a FIP

where the State’s fully approved SIP remains in effect. See Bechtel Const., Inc. v.

United Bhd. of Carpenters & Joiners of Am., 812 F.2d 1220, 1225 (9th Cir. 1987)

(“Legislative enactments should never be construed as establishing statutory

schemes that are illogical, unjust, or capricious”). This would upset the Act’s

scheme of cooperative federalism, which accords States primary responsibility in

controlling air pollution within their borders, 42 U.S.C. § 7401(a)(3). The

provision plainly applies only to EPA disapprovals of required SIP submittals. 

Even if it were ambiguous, EPA’s interpretation of this provision as

applicable only to required submittals is reasonable and should be accorded

deference under Chevron. Also entitled to deference (assuming for the sake of

argument that the provisions are not unambiguous on the matter, as described

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above) is EPA’s interpretation of CAA sections 110(c)(1)(A) and 179(a) as

inapplicable where EPA disapproves a SIP revision that was not “required” within

the meaning of those provisions. To determine whether EPA’s interpretation is

permissible, the Court should “look to the plain and sensible meaning of the

statute, the statutory provision in the context of the whole statute and case law,

and to the legislative purpose and intent.” Cuevas-Gaspar v. Gonzales, 430 F.3d

1013, 1022 (9th Cir. 2005). 

As noted above, EPA’s interpretation is consistent with the purposes behind

the FIP and sanctions provisions. Under Title I of the Act, States have primary

responsibility for implementing the NAAQS and EPA may step in only once it has

determined that a State has failed to fulfill its responsibilities. 42 U.S.C.

§ 7401(a)(3). The mandatory sanctions provision was created to provide an

incentive for States to take primary responsibility for implementing the NAAQS

within their boundaries. See Natural Res. Def. Council, Inc. v. Browner, 57 F.3d

1122, 1123–24 (D.C. Cir. 1995) (“Congress established a number of incentives for

states to comply with SIP submission and implementation deadlines . . .

includ[ing] mandatory sanctions, discretionary sanctions, and imposition of a

[FIP].”). Similarly, the FIP provision was created to ensure that where the States

fail to take such responsibility, EPA will step into the State’s shoes and ensure that

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the statutory obligation is met. Id. Thus, once a State has met its statutory

obligation, as has California with respect to the 1-hour ozone attainment

demonstration for the South Coast, there is no basis for the imposition of sanctions

or the promulgation of a FIP. EPA’s interpretation gives full effect to the Act’s

approach of vesting States with the “primary responsibility” for attaining the

NAAQS, 42 U.S.C. § 7407(a). 

Furthermore, EPA’s interpretation is reasonable because it makes no sense

to interpret the FIP and sanctions provisions to be triggered in a situation, such as

that in the South Coast, where EPA disapproves discretionary revisions to the

State’s fully-approved SIP. States are free to request modifications to their

approved SIPs, and such modifications may be more, less, or equally as stringent

as the requirements in the approved plan. For example, a State may choose to

revise a technology-based requirement for a source category to make it less

stringent than a requirement that was previously approved under 42 U.S.C.

§ 7511a(b)(2), which requires “reasonably available control technology” for

certain sources. If EPA were to disapprove such submission, it would make no

sense to interpret the Act to require EPA to promulgate a FIP in place of the

disapproved submission when the SIP already contains an approved technologybased requirement for that source category. The purpose of a FIP is to establish a

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federal plan when a State has not met its obligation to develop an approvable plan;

its purpose is not to supercede existing approved State plans. See McCarthy v.

Thomas, 27 F.3d 1363, 1365 (9th Cir. 1994) (“A FIP is a set of enforceable federal

regulations that stand in the place of deficient portions of a SIP.”) (emphasis

added). 

EPA has consistently maintained, as a matter of national policy, that when it

disapproves discretionary SIP revisions, no sanctions or FIP requirements are

triggered. See, e.g., 58 Fed. Reg. 50,262, 50,265 (Sept. 27, 1993) (Alabama); 65

Fed. Reg. 10,713, 10,716 (Feb. 29, 2000) (California); 73 Fed. Reg. 20,536,

20,547 (Apr. 16, 2008) (Nevada). EPA’s longstanding, consistently-applied

interpretation of the FIP and sanctions provisions as inapplicable to disapprovals

of discretionary SIP revisions is reasonable, and entitled to deference under

Chevron. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993)

(explaining that “the consistency of an agency’s position is a factor in assessing

the weight that position is due”); Natural Res. Def. Council v. EPA, 526 F.3d 591,

602 (9th Cir. 2008) (same). Therefore, the Court should uphold EPA’s

determination that its disapproval of the voluntary 1-hour ozone attainment

demonstration in the 2003 South Coast AQMP did not trigger FIP or sanctions

clocks. 

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II. THIS COURT LACKS JURISDICTION TO HEAR PETITIONERS’

“PESTICIDE ELEMENT” CLAIMS

Petitioners lack standing to challenge EPA’s action approving PEST-1, the

2003 State Strategy’s commitment to continue to implement the existing strategy

to reduce VOC emissions from agricultural and structural pesticides in the South

Coast and other areas. EPA first approved this strategy, the so-called “Pesticide

Element,” in 1997. RER 117. Whether EPA had approved or disapproved PEST1, it would have remained in effect. Petitioners’ alleged injuries stemming from

the Pesticide Element were not caused by EPA’s 2009 rulemaking, and cannot be

redressed by the relief they seek. 

A. Petitioners Lack Standing to Challenge EPA’s 2009 Approval of

PEST-1, the 2003 State Strategy’s Commitment to Maintain the

Status Quo With Respect to the Existing Pesticide Element 

“Article III of the Constitution confines the federal courts to adjudicating

actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984);

Warth v. Seldin, 422 U.S. 490, 498 (1975). “Federal courts are presumed to lack

jurisdiction, unless the contrary appears affirmatively from the record.” Casey v.

Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (citation and internal quotation marks

omitted). As the parties invoking federal jurisdiction, Petitioners bear the burden

of demonstrating that they possess standing to seek the requested relief. See

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Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009); Northwest Envt’l

Defense Ctr. v. BPA, 117 F.3d 1520, 1528 (9th Cir. 1997). 

To pursue their claims, Petitioners must demonstrate the three elements that

constitute the “irreducible constitutional minimum” of Article III standing. Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In Lujan, the Supreme Court

reiterated that a plaintiff must have suffered an “injury in fact” that is actual,

imminent and not conjectural or hypothetical, that was caused by the conduct

complained of, and that is likely to be redressed by a favorable decision. Id. at

560–61. Petitioners must demonstrate standing separately for each claim, and for

each form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

(2006). 

1. Petitioners’ alleged injuries were not caused by EPA’s 2009

approval of PEST-1, the 2003 State Strategy’s commitment

to maintain the status quo with respect to the existing

Pesticide Element.

To satisfy the traceability requirement of constitutional standing, Petitioners

must show there is a “causal connection between the injury and the conduct

complained of – the injury has to be ‘fairly . . . trace[able] to the challenged action

of the defendant.’” Lujan, 504 U.S. at 560 (alteration and ellipses in original)

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(quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976)).

Petitioners have failed to meet this burden.

As relevant to their Pesticide Element claims, Petitioners allege that they

and their members are injured by “excess emissions allowed from [EPA’s] failure

to control pesticides, emissions that would not otherwise occur,” Pet. Br. at 29,

and by “weakened enforcement opportunities for failures to comply with the EPAapproved SIP measures,” id. at 30. Petitioners also assert that they are injured by

“EPA’s approval of unenforceable commitments in the State Strategy, which could

preclude Petitioners from seeking redress if these measures are not implemented.” 

Id. As explained below, there is simply no causal link between any of these

alleged injuries and EPA’s 2009 action maintaining the status quo with respect to

the existing Pesticide Element, for that element would have remained in effect

regardless of whether EPA approved or disapproved PEST-1. 

The limited language in the 2003 State Strategy concerning PEST-1

indicates that it is simply a continuation of the Pesticide Element as approved in

1997: “As described in the 1994 SIP and U.S. EPA’s notice approving that plan,

[the California Department of Pesticide Regulation] committed to reduce VOC

emissions from pesticides through voluntary measures, with a regulatory

backstop.” PER 256. As EPA stated in its proposed rulemaking and in response

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to comments, “We interpret our approval of this measure as maintaining the status

quo with respect to the existing pesticide strategy (i.e., the SIP will continue to

reflect the strategy as approved by EPA in 1997).” PER 006. 

CARB, the designee for SIP matters in California, did not submit comments

in response to EPA’s proposed rule on the 2003 State Strategy, and thus did not

object to EPA’s interpretation that approval of PEST-1 maintained the status quo. 

Likewise, neither during public comments nor in their opening brief did

Petitioners challenge this interpretation. Nor did they challenge EPA’s assertion

that either approval or disapproval would have resulted in the same regulatory

outcome, i.e., continuation of the existing Pesticide Element as approved by EPA

in 1997. 

Petitioners’ sole claim appears to be that the description of the Pesticide

Element in PEST-1 is faulty given the outcome of this Court’s decision in El

Comité para el Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062 (9th Cir.

2008), and that the Pesticide Element, as approved into the SIP in 1997, is

unenforceable. They therefore assert that EPA’s approval of PEST-1 violates the

Act and that the Court should “vacate EPA’s approval of the 2003 State Strategy.”

Pet. Br. 47. However, EPA’s recent approval of PEST-1 did not make the

Pesticide Element either more, or less, enforceable than it already was. The

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Pesticide Element would have continued in effect regardless of what action EPA

took. Thus, even if Petitioners’ alleged harm is fairly traceable to EPA’s approval

of the Pesticide Element in 1997, it is not fairly traceable to EPA’s approval of

PEST-1 in 2009. 

In support of their assertion that their injuries are traceable to EPA’s actions

with respect to PEST-1, Petitioners attempt to compare this case with Biodiversity

Legal Found. v. Badgley, 309 F.3d 1166 (9th Cir. 2002). Pet. Br. 29. In that case,

an environmental organization was injured by the U.S. Fish & Wildlife Service’s

failure to comply with certain deadlines under the Endangered Species Act, which

failure “result[ed] in continued threats to [threatened species’] existence.”

Badgley, 309 F.3d at 1172. Unlike the situation in Badgley, where affirmative

action by the U.S. Fish & Wildlife Service would have resulted in the species

being listed as plaintiffs desired, here the existing Pesticide Element would have

remained in effect whether EPA approved or disapproved PEST-1. Petitioners’

alleged injuries are thus not fairly traceable to EPA’s recent action. 

2. Vacatur and remand of EPA’s approval of PEST-1 would

not redress Petitioners’ alleged injuries.

Petitioners also cannot satisfy the requirement that a favorable judicial

decision would “likely” redress their alleged injury. See Lujan, 504 U.S. at 561. 

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The redressability analysis requires a court to examine whether it “has the power

to right or prevent the claimed injury.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267

(9th Cir. 1982). Even if this Court were to grant the relief Petitioners’ seek,

vacatur and remand of EPA’s approval of PEST-1 (see Pet. Br. at 3, 21, 47, and

60), this would not redress their alleged injuries because the existing Pesticide

Element as approved in 1997 would remain in effect as a SIP-approved

commitment. Any injuries stemming from that previously-approved element

would continue to occur. See Railway Labor Executives Ass’n v. Dole, 760 F.2d

1021, 1023 (9th Cir. 1985) (holding that plaintiff’s injury was not redressable

because, even if the court granted the requested injunctive relief, the injury would

continue to occur). 

Even assuming, arguendo, that “[r]eduction in ozone levels will alleviate

Petitioners’ harm,” Pet. Br. at 31, this is not the relief that would result if the Court

vacates EPA’s approval of PEST-1. Vacatur of this approval would not reduce

actual pollution levels, reduce the risk of pollution levels, or have any other realworld consequences because the substance of the SIP would be unaffected by

vacatur. Even if EPA disapproved PEST-1 on remand, as Petitioners argue EPA

should have done as an initial matter, Pet. Br. at 40, the identical Pesticide

Element as approved in 1997 would remain in effect. 

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As explained above, Petitioners do not challenge EPA’s statement that its

approval of PEST-1 in 2009 simply maintains the status quo with respect to the

existing Pesticide Element, nor do they dispute that either an approval or

disapproval would have left the Pesticide Element intact. Instead, they claim that

“EPA violated the Act by approving an unenforceable committal measure,” Pet.

Br. at 46, and that “EPA should have disapproved the Pesticide Element’s

commitment to adopt regulations,” id. at 40. Were the Court to grant their request

for vacatur and remand, on remand the agency would be presented with the same

dilemma as in the original rulemaking – a false choice between identical

outcomes. Just as before, any “deficiencies in the enforceability of the Pesticide

Element, whatever they might be, [would be] the same,” whether EPA approves or

disapproves the 2003 submission. PER 006. Because a favorable ruling by this

Court would not redress their alleged injuries, Petitioners lack standing to

challenge EPA’s approval of PEST-1. This claim should be dismissed.

B. EPA’s Approval of the 2003 State Strategy’s Commitment to

Maintain the Status Quo With Respect to the Existing Approved

“Pesticide Element” Did Not Entail a Substantive Review of That

Element

California had originally intended the 2003 State Strategy to “entirely

replace the existing State control strategy for the South Coast” with a new

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strategy. PER 005. For the sake of completeness, and to allow for the wholesale

replacement of the existing strategy for the South Coast with the new 2003 State

Strategy, California included a proposal (“PEST-1”) to continue its existing

commitment to reduce VOC emissions from pesticide use (i.e., to continue the

existing Pesticide Element). 

California withdrew several key components of this new strategy in 2008,

before EPA acted on the submission. See PER 010–011. This withdrawal

foreclosed any possibility for the wholesale replacement of the existing state

strategy for the South Coast, so technically there was no longer any need for the

State to include the Pesticide Element as part of the package, as the previouslyapproved SIP already contained it. Nonetheless, California did not withdraw its

commitment to continue the existing 1997-approved Pesticide Element. EPA was

thus obliged either to approve or disapprove it. 

Because PEST-1 was not a substantive revision to the approved SIP but

merely a recognition of the state’s existing obligation, and because no action it

could have taken regarding PEST-1 could have altered the existing Pesticide

Element, EPA was not required under the CAA to conduct a substantive review of

the existing Pesticide Element. The submittal of PEST-1 was not itself federally

required, nor was it included in a plan that was federally required, and PEST-1 did

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Should the Court find that Petitioners have standing to challenge EPA’s 10/

approval of PEST-1, and also find that EPA was required under the CAA to

conduct a substantive review of the existing Pesticide Element, EPA respectfully

requests that the Court remand this issue to EPA for that review.

47

nothing to change the existing SIP. Thus, EPA had two options, to approve or

disapprove, neither of which could have rescinded the underlying strategy about

which Petitioners complain. EPA approved the submission. As it explained in the

final rule, EPA did not regard its action approving the submission as a substantive

ruling on the merits of the Pesticide Element. Rather, it interpreted its approval as

“maintaining the status quo with respect to the existing pesticide strategy.” PER

006. This interpretation, unchallenged by Petitioners, merely recognizes that the

existing approved Pesticide Element would remain in effect whether or not EPA

approved the State’s commitment in PEST-1 to continue to implement it.10/

III. EPA REASONABLY CONCLUDED THAT SCAQMD’S

SUPPLEMENTAL DEMONSTRATION SATISFIES THE

REQUIREMENT OF CAA SECTION 182(d)(1)(A) TO OFFSET ANY

GROWTH IN EMISSIONS FROM GROWTH IN VEHICLE MILES

TRAVELED OR NUMBERS OF VEHICLE TRIPS 

As an “extreme” ozone nonattainment area, the South Coast Air Basin is

subject to stringent control measure requirements. Among these is CAA section

182(d)(1)(A), which states in relevant part:

Within 2 years after November 15, 1990, the State shall submit a revision

that identifies and adopts specific enforceable transportation control

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The phrase “transportation control strategies” refers generally to measures that 11/

are directed toward reducing emissions of air pollutants from transportation

sources. The phrase “transportation control measures” refers to measures that

reduce emissions or concentrations of air pollutants from transportation sources by

reducing vehicle use or changing traffic flow or congestion conditions. See 42

U.S.C. § 7408(f)(1)(A) (listing examples of TCMs).

48

strategies and transportation control measures to offset any growth in

emissions from growth in vehicle miles traveled or numbers of vehicle trips

in such area and to attain reduction in motor vehicle emissions as necessary,

in combination with other emission reduction requirements of this subpart,

to comply with the requirements of subsection (b)(2)(B) and (c)(2)(B) of

this section (pertaining to periodic emissions reduction requirements).

42 U.S.C. § 7511a(d)(1)(A). Transportation control strategies and transportation

control measures are hereinafter referred to collectively as “TCMs,” and vehicle

miles traveled and numbers of vehicle trips are referred to collectively as

“VMT.” 

11/

In its final rule, EPA approved SCAQMD’s demonstration that projected

motor vehicle emissions in the South Coast will decrease each year through the

attainment year as satisfying the requirements of CAA section 182(d)(1)(A). EPA

thus interprets CAA section 182(d)(1)(A) to allow a State to show that,

notwithstanding an increase in VMT, aggregate motor vehicle emissions will

decline each year through the attainment year through a variety of motor-vehiclerelated emissions controls.

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49

Under EPA’s interpretation, a State must identify and adopt specific

enforceable TCMs for the purpose of offsetting growth in VMT only if the

emissions resulting from the projected increase in VMT will exceed the

emissions-reducing effects of vehicle turnover and fuel specifications, leading to a

projected year-over-year increase in motor vehicle emissions. Here, SCAQMD

submitted a demonstration showing that motor vehicle emissions in the South

Coast would decline each year through the attainment year, obviating the need to

for the State to identify or adopt TCMs for the specific purpose of offsetting any

emissions increases from VMT growth in the South Coast. See PER 017. EPA

thus approved SCAQMD’s demonstration as satisfying CAA section 182(d)(1)(A). 

As a result, California was not required to identify or adopt specific enforceable

TCMs for the specific purpose of offsetting any emissions increases from VMT

growth in the South Coast under the 1-hour ozone standard. 

EPA’s interpretation of the statute is reasonable, and must be upheld. As

EPA has previously explained, see RER 045–46, the portion of CAA section

182(d)(1)(A) requiring States to identify and adopt TCMs “to offset any growth in

emissions from growth in [VMT]” can be read in at least two opposing ways. 

EPA interprets the phrase to require offsetting TCMs only where VMT growth

results in aggregate motor vehicle emissions increases. A mere growth in VMT or

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50

numbers of vehicle trips would not trigger the duty to submit TCMs unless such

growth results in an aggregate motor vehicle emissions increase in the area. Under

EPA’s interpretation, the State must establish the current level of motor vehicle

emissions in the area, and also project what future motor vehicle emissions will be,

taking into account all applicable control measures. 

Petitioners, on the other hand, rely on a statement in the House Committee

Report asserting that whether a “growth in emissions” from growth in VMT

occurs should be determined by comparing emissions levels to what “would occur

if VMT held constant in the area.” See H.R. Rep. No. 101–490 at 242, reprinted

in 2 A Legislative History of the Clean Air Act Amendments of 1990 (Comm.

Print 1993) (“Legis. Hist.”) at 3266 [Addendum (“ADD”) 124]. This contrary

view reads the phrase “growth in emissions” out of the statute by predicating the

duty to submit TCMs solely on whether there has been growth in VMT. This

interpretation disregards control measures (such as alternative fuel and tailpipe

controls) that decrease aggregate motor vehicle emissions levels in the area. 

Whether Petitioners’ interpretation is even plausible is not relevant. Because

EPA’s is reasonable, it must be upheld. 

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A. CAA Section 182(d)(1)(A) Directs States to Submit TCMs to

Offset Any “Growth in Emissions” From Growth in VMT, But

Does Not Require States to Offset VMT Growth Where

Aggregate Vehicle Emissions Do Not Increase

Petitioners are mistaken that CAA section 182(d)(1)(A) requires TCMs to

offset any growth in VMT, whether aggregate motor vehicle emissions are

increasing or decreasing in the area. The plain language of the statute does not

speak directly to the issue of how to determine whether there has been a “growth

in emissions” due to growth in VMT. 

Petitioners do not dispute California’s demonstration of declining motor

vehicle emissions each year in the South Coast through 2010, yet they argue that

offsetting TCMs are nonetheless required because “VMT has increased in the

South Coast Air Basin and . . . vehicle emissions are higher than they would be if

VMT held constant in the area.” Pet. Br. at 49. EPA has consistently rejected this

interpretation, which would in this case and many others force States to ignore the

beneficial impacts of all vehicle tailpipe and alternative fuel controls and require

offsetting TCMs even while aggregate vehicle emissions are declining (and even

where no such TCMs are needed to meet the reasonable-further-progress and

attainment requirements under the CAA). See RER 045. Essentially, Petitioners’

interpretation reads the “growth in emissions” phrase out of the statute, rendering

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52

it mere surplusage, as if all the Act requires is a simplistic analysis of whether

VMT is increasing. 

Petitioners’ challenge presents a question of statutory interpretation, which

must be analyzed under the deferential two-part test of Chevron. CAA section

182(d)(1)(A) instructs EPA and the States to undertake some kind of analysis to

determine: a) whether there has been “any growth in emissions,” and b) whether

that growth in emissions resulted “from growth in vehicle miles traveled or

numbers of vehicle trips in such area.” That is, use of the word “growth” in

reference to both “emissions” and “[VMT]” suggests two baselines, one pegged to

changes in emissions and the other pegged to changes in VMT. The statute does

not mandate submission of TCMs where there is only “growth in emissions” with

no relationship to VMT, nor where there is “growth in VMT” with no relationship

to emissions. Rather, there must be growth in both emissions and in VMT, and the

latter must be the cause of the former. The question is how to conduct the analysis

for these two determinations – i.e., whether the statute can reasonably be read as

not requiring States to submit TCMs where they can show that, notwithstanding

growth in VMT, there is no consequential increase in motor vehicle emissions. 

Petitioners’ interpretation of the statute reads the preposition “from”

connecting the phrase “growth in emissions” and “growth in [VMT]” as

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 EPA interprets this provision to require that sufficient measures be adopted so

12/

that projected motor vehicle emissions will never be higher during the ozone

(continued...)

53

mandating a single baseline pegged solely to changes in VMT. This reading

unreasonably views the phrase “growth in emissions from growth in [VMT]” in

isolation from other factors affecting motor vehicle emissions. This reading also

renders the qualifying phrase “growth in” (in reference to emissions) mere

surplusage, for the requirement to adopt TCMs “to offset any growth in emissions

from growth in [VMT]” would have precisely the same meaning as a requirement

to adopt TCMs “to offset emissions from growth in [VMT].” This violates a

fundamental canon of statutory construction: that “[a] statute should be construed

so that effect is given to all its provisions, so that no part will be inoperative or

superfluous, void or insignificant.” Corley v. United States, 129 S. Ct. 1558, 1566

(2009). In contrast, EPA’s interpretation gives meaning to both “growth in

emissions” and “growth in [VMT].”

While the statute is clear that the duty to submit TCMs is contingent on a

“growth in emissions” resulting from growth in VMT, it is ambiguous regarding

how this prerequisite “growth in emissions” is to be established or substantiated. 

Growth in emissions might be measured according to whether growth in VMT will

result in an aggregate increase in motor vehicle emissions. This is EPA’s

12/

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(...continued)

season in one year than during the ozone season in the year before. RER 044–45. 

When growth in VMT and vehicle trips would otherwise cause a motor vehicle

emissions upturn, this upturn must be prevented. Id. The emissions level at the

point of upturn becomes a ceiling on motor vehicle emissions. Id. For EPA’s

detailed explanation of this analytical approach, see RER 044–46.

54

approach. Alternatively, as Petitioners assert, growth in emissions might be

measured according to whether vehicle emissions are higher than they would have

been (even if they may have actually decreased due to other controls) if VMT

remained constant. 

Petitioners argue that the plain language of the statute speaks directly to the

issue of the appropriate baseline from which to judge whether, and to what extent,

TCMs are required. To support this assertion, they identify a “key clause,” which

omits the words “growth in” prior to “emissions from growth in [VMT].” Pet. Br.

at 51. Of course, without the words “growth in” prior to the word “emissions” in

the clause “growth in emissions from growth in [VMT],” the phrase is indeed

unambiguous. However, the statute is not written that way. The key clause is

actually “growth in emissions from growth in [VMT],” and for the reasons set

forth above, it is ambiguous. 

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55

Because the statutory language is susceptible to both these interpretations, it

is therefore “ambiguous” for purposes of Chevron, and any reasonable EPA

interpretation must be upheld. 

B. EPA Reasonably Concluded That SCAQMD’s Demonstration

Satisfies the Requirement Under CAA Section 182(d)(1)(A) To

Adopt TCMs to Offset Any Increase In Emissions From Growth

In VMT

As discussed above, CAA section 182(d)(1)(A) does not specify the

baseline for determining whether there has been a “growth in emissions” due to

growth in VMT, and here EPA determined that no offsetting TCMs were required

given SCAQMD’s demonstration that aggregate motor vehicle emissions, taking

into account growth in VMT as well as motor-vehicle related controls, would

decrease each year through the attainment year. PER 005 and 017. EPA has long

interpreted this provision to require offsetting TCMs only where VMT growth

results in aggregate motor vehicle emissions increases, thus requiring States to

conduct a detailed factual analysis of whether aggregate motor vehicle emissions

are increasing, even in the face of a myriad of control measures, due to that VMT

increase. See RER 045–46. Because the statute is ambiguous, the only question

under Chevron step two is whether EPA’s interpretation is “based on a permissible

construction of the statute.” Chevron, 467 U.S. at 843.

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First, EPA’s long-established and consistent application of this

interpretation is entitled to especially great deference under Chevron. Barnhart v.

Walton, 535 U.S. 212, 220 (2002) (“[T]his Court will normally accord particular

deference to an agency interpretation of longstanding duration.”) (internal

quotation omitted). EPA has applied this interpretation, even in response to

adverse comments, in many rulemakings since the enactment of the 1990

amendments to the Act that added the TCM offset provision. See, e.g., 60 Fed.

Reg. 48,896, 48,898 (Sept. 21, 1995) (final approval of Illinois’ SIP); 62 Fed. Reg.

23,410, 23,417 (Apr. 30, 1997) and 62 Fed. Reg. 35,100 (Jun. 30, 1997) (proposed

and final approval of New Jersey’s SIP); 66 Fed. Reg. 57,247, 57,248–49 (Nov.

14, 2001) (final approval of Texas’ SIP). 

Second, EPA’s interpretation is consistent with the purposes of the Act, and

is reasonable in context of the statutory scheme as a whole, as shown by the

Agency’s explanation in the General Preamble and numerous rulemaking actions. 

The TCM offset requirement aims to prevent growth in motor vehicle emissions

from outweighing emission reduction benefits obtained through other provisions

of the CAA. 

The TCM offset provision is simply one of many provisions in the Act

aimed at attaining the ozone NAAQS. In context of the “intricate planning

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57

requirements Congress established in title I to bring areas towards attainment of

the ozone standard,” RER 045, EPA’s approach of viewing the TCM offset

requirement in light of other emissions reductions measures is reasonable because

it recognizes that the Act’s various provisions work in tandem to attain the

NAAQS. This interpretation is not “toothless,” Pet. Br. at 55, for it ensures that

when growth in VMT is projected to cause an upturn in aggregate motor vehicle

emissions that jeopardizes the emissions reductions achieved by other motor

vehicle control measures, the State must offset the increase with TCMs as

specified by the Act. 

Petitioners claim that EPA’s interpretation gives effect only to the second

clause of section 182(d)(1)(A) (i.e., adopting TCMs to attain motor vehicle

emissions reductions as necessary to comply with periodic emissions reduction

requirements) and ignores the first (i.e., adopting TCMs to offset growth in

emissions from growth in VMT). Pet. Br. at 53–54. While this second clause also

refers to reductions in motor vehicle emissions, it too does not specify a baseline

and may well require more or fewer TCMs, on a different implementation

schedule, than would be necessary to meet the year-over-year reductions in

aggregate motor vehicle emissions required under EPA’s interpretation of the first

clause (i.e., the TCM offset provision) of section 182(d)(1)(A). Thus, EPA’s

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Petitioners rely heavily on the House Committee Report (“The baseline for

13/

determining whether there has been growth in emissions ... is the level of vehicle

emissions that would occur if VMT held constant in the area,” 2 Legis. Hist. at

3266–67 [ADD 124], in support of their alternative interpretation of section

182(d)(1)(A). However, as set forth in the Chafee-Baucus Statement of Senate

Managers, the Senate view, rather than the House view, of the relevant required

transportation controls was the one ultimately enacted. 1 Legis. Hist. at 883

(“With respect to transportation controls in severe and extreme areas (new section

182(d)(1) of the Clean Air Act), the House recedes to the Senate . . . .”) [ADD

111]. Thus, the House Committee Report’s gloss on the applicable baseline for

implementing the TCM offset provision holds little weight in determining

congressional intent.

58

interpretation does not, as Petitioners argue, “ascribe the two clauses of section

182(d)(1)(A) with the same meaning.” Id. 

Third, while snippets of legislative history may be read, in isolation, to

support Petitioners’ contrary interpretation, reliance on that legislative history

alone is not sufficient to bar EPA’s interpretation as unreasonable. Moreover, as 13/

EPA has explained, applying as the “baseline for whether there has been growth in

emissions due to increased VMT [...] the level of vehicle emissions that would

occur if VMT held constant in the area,” 2 Legis. Hist. at 3266 [ADD 124],

“would have drastic implications for many of the areas subject to the provision,”

RER 045. In cities where VMT is growing at high rates, such as Los Angeles,

draconian TCMs like mandatory no-drive-day restrictions would have to be

imposed to fully offset increased VMT rates, even while ignoring beneficial

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59

impacts of vehicle tailpipe and alternative fuel controls that result in an actual

absence of “growth in” motor vehicle emissions. Id. 

Petitioners’ citation to other legislative history – a statement by

Representative Manton on the Conference Report, excerpts from the Senate

Committee Report and the Conference Report, and a statement from Senator

Lieberman discussing the Senate bill – are similarly unavailing because they shed

no light on what baseline to use for determining whether, and to what extent, there

will be growth in emissions due to growth in VMT. 

Petitioners’ reliance on the statement of Representative Manton in the

House debate on the Conference Report that “the specific provisions [are] to offset

growth in vehicle miles traveled,” 1 Legis. Hist. at 1304 [ADD 117], and on the

Senate Committee Report’s reading of the Senate bill to “offset growth in vehicle

miles traveled,” 5 Legis. Hist. at 8384 [ADD 134], actually undermines

Petitioners’ interpretation, as neither of those statements accurately captures what

the statutory language addressed – a “growth in emissions from” the separate

growth in VMT. EPA does not believe it would be reasonable to read the “growth

in emissions from” phrase out of the Act based on such minimal, short-hand, and

inaccurate descriptions of section 182(d)(1)(A) in the legislative history. Viewed

in the fuller context in which it was made, Representative Manton’s statement was

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60

clearly focused on the requirement that States avoid TCMs that simply “relocate

emissions and congestion,” 1 Legis. Hist. at 1304 [ADD 117], not on what

baseline States must use to comply with the TCM offset requirement. 

Similarly, the observations presented by Senator Baucus in the Clean Air

Conference Report, 1 Legis. Hist. at 1006–07 [ADD 113–114], and Senator

Lieberman in discussing the Senate bill, 4 Legis. Hist. at 4878 [ADD 129], in no

way purport to interpret the precise meaning of “any growth in emissions from

growth in” VMT, and therefore do nothing to rebut EPA’s interpretation. Senator

Lieberman’s statement merely reflects his expectation that, under the Senate bill,

“it may become necessary to implement transportation control measures to reduce

our reliance on the automobile,” 4 Legis. Hist. at 4878 [ADD 129] (emphasis

added), in addition to strict controls on emissions from motor vehicles. Under the

petitioners’ interpretation of the TCM offset requirement, TCMs would

necessarily be required to offset VMT given the well-known inexorable increases

in VMT throughout the country. See, e.g., PER 161. 

Later in the same statement, Senator Lieberman states: “Our legislation . . .

would also encourage severely polluted regions to adopt transportation controls,

though the decision as to what controls to implement would be left up to the

States. Our bill does not impose any requirement for taxes, rationing, or tolls.” 4

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/

Petitioners challenge EPA’s assertion that Petitioners’ interpretation of the TCM

14

offset requirement would result in States having to impose “draconian” TCMs,

citing the initial inclusion of “several modest but effective TCMs” in the 2003

South Coast AQMP, Pet. Br. at 55, yet they make no showing that the TCMs

initially included in the 2003 South Coast AQMP would have even come close to

offsetting the increase in VMT from the base year. To put in perspective the

burden on States under Petitioners’ interpretation, one need only examine a few

pages of the 2003 South Coast AQMP to see that the emissions reductions

expected from the TCMs included in the plan would fall far short of the total

emissions reduction needed to offset the increase in VMT. First, the 2003 South

Coast AQMP shows that the plan is based on a forecast of a 31% increase in VMT

from 1997 to 2010. PER 161. In 2010, motor vehicle emissions are projected in

the plan to be 210 tons per day of VOC. PER 164 (Table 3-4B). Under

Petitioners’ interpretation, TCMs by the State would be required to offset

emissions equal to 31% of motor vehicle emissions in 2010, or approximately 50

tons per day of VOC [i.e., 210 minus (210 divided by 1.31, or 160) = 50]. In

contrast, the 2003 South Coast AQMP expected the TCMs included in the plan to

achieve only 5 tons per day of VOC reduction by 2010 – an order of magnitude

less than necessary to fully offset the increase in VMT. See PER 179.

61

Legis. Hist. at 4879 [ADD 130]. These are precisely the types of TCMs that States

would have to resort to if Petitioners’ interpretation of the VMT offset requirement

were to be given effect. 

14/

The Court should uphold EPA’s approval of SCAQMD’s demonstration,

based on EPA’s reasonable interpretation of 42 U.S.C. § 7511a(d)(1)(A).

CONCLUSION

For the reasons set forth above, EPA respectfully requests that the Court

deny the petitions.

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62

Respectfully submitted,

JOHN C. CRUDEN

Acting Assistant Attorney General

Environment & Natural Resources Division

/s/Austin D. Saylor 

AUSTIN D. SAYLOR

Trial Attorney

U.S. Department of Justice

Environment & Natural Resources Division

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 514-1880

OF COUNSEL:

JAN M. TIERNEY

U.S. Environmental Protection Agency

Office of General Counsel

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Mail Code 2344A

Washington, D.C. 20460

(202) 564-5598

JEFFERSON L. WEHLING

U.S. Environmental Protection Agency

Region IX

Office of Regional Counsel

75 Hawthorne Street

San Francisco, CA 94105

(415) 972-3901 

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63

CERTIFICATE OF COMPLIANCE WITH WORD LIMIT

I certify that this brief complies with the type-volume limitation of Federal

Rule of Appellate Procedure 32(a)(7)(B). This brief is proportionally spaced, has

a 14-point typeface, and contains 13,845 words, as counted by Corel WordPerfect

X3, excluding the portions of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

/s/Austin D. Saylor 

AUSTIN D. SAYLOR

Trial Attorney

U.S. Department of Justice

Environment & Natural Res. Div.

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 514-1880

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing BRIEF FOR

RESPONDENTS, and a Statutory and Regulatory Addendum, with the Clerk of

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on November 4, 2009. 

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system. 

/s/Austin D. Saylor 

AUSTIN D. SAYLOR

Trial Attorney

U.S. Department of Justice

Environment & Natural Res. Div.

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 514-1880

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