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., Respondent s . Nos. 09

- 71383 and 09

- 7 1 404 (Consolidated)

On Petitions for Review of Final Action of the United States Environmental Protection Agency

PETITION FOR PANEL REHEARING

Of Counsel : IGNACIA S. MORENO JEFFERSON L. WEHLING Assistant Attorney General U.S. EPA Region I X Environment & Natura l Resources Division Office of Regional Counsel 75 Hawthorne St

. AUSTIN D. SAYLOR San Francisco , C A 94105 United States Department of Justice Environmental Defense Section JAN M. TIERNEY P.O. Box 23986 MICHAEL W . THRIFT Washington, D.C. 20 026

- 3986 U.S. EPA Office of General Counsel 1200 Penn. Ave. NW MC2344 A Washington D.C. 20460 May 5 , 2011 Case: 09-71383 05/05/2011 Page: 1 of 25 ID: 7741750 DktEntry: 41-1i TABLE OF CONTENTS
BACKGROUND

................................ ................................ ................................ ......... 2
I. STATUTORY BACKGROUND

................................ ................................ ...... 2
A. Select State Implementation Plan Requirements in “Extreme” Nonattainment Areas

................................ ................................ ............... 2
B. Federal Implementation Plans and Sanctions

................................ ......... 3
C. The 2003 State Strategy and 2003 South Coast Air Quality Management Plan

................................ ................................ .................... 4
II. PETITIONERS’ ARGUMENTS AND THE COURT’S DECISION

.............. 5
ARGUMENT

................................ ................................ ................................ ............... 7
I. THE COURT ERRONEOUSL Y CONCLUDED THAT EPA ’S DISAPP ROVAL OF THE 2003 AT TAINMENT DEMONSTRATI ON TRIGGERED SANCTIONS UNDER SECTION 7509 OF THE ACT

................................ ................................ ................................ .... 7
II. THE COURT ERRED IN FAILING TO DEFER TO EPA’S REASONABLE INTERPRETATION OF THE AMBIGUOUS STATUTORY REFERENCE TO “GROWTH IN EMISSIONS”

................... 11
CONCLUSION

................................ ................................ ................................ ............ 18 Case: 09-71383 05/05/2011 Page: 2 of 25 ID: 7741750 DktEntry: 41-1ii TABLE OF AUTHORITIES CASES Association of Irritated Residents, et al. v. EPA , 632 F.3d 584 (9th Cir. 2011)

................................ ................................ ........ passim BedRoc Ltd. v. United States , 541 U.S. 176 (2004)

................................ ................................ ............................. 17 California Wilderness Coalition v. U.S. De partment of Energy , 631 F.3d 1072 (9th Cir. 2011)

................................ ................................ .............. 11 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984)

................................ ................................ ............................. 11 Davis v. Michigan Dep't of Treasury , 489 U.S. 803 (1989)

................................ ................................ ............................. 15 Field v. Mans , 516 U.S. 59 (1995)

................................ ................................ ............................... 10 United States v. Daas , 198 F.3d 1167 (9th Cir. 1999)

................................ ................................ .............. 15

STATUTES 42 U.S.C. § 7410(c)(1)(A)

- (B)

................................ ................................ .................. 4 42 U.S.C. § 7410(k)(5)

................................ ................................ ............................... 8 42 U.S.C. § 7502(c)(3)

................................ ................................ ................ 3, 8, 9, 10 42 U.S.C. § 7506(c)(1)

................................ ................................ ................ 3, 8, 9, 10 42 U.S.C. § 7506(c)(1)(B)

................................ ................................ ......................... 7 42 U.S.C. § 7509(a)

................................ ................................ ............................... 4, 8 42 U.S.C. § 7509(a)(1)

- (4)

................................ ................................ ......................... 4 Case: 09-71383 05/05/2011 Page: 3 of 25 ID: 7741750 DktEntry: 41-1iii 42 U.S.C. § 7509(b)(1)

- (2)

................................ ................................ ........................ 4 42 U.S.C. § 7511a(c)(2)

................................ ................................ ............................. 9 42 U.S.C. § 7511a(c)(2)(A)

................................ ................................ ....................... 2 42 U.S.C. § 7511a(d)(1)(A)

................................ ................................ .. 3, 5, 6, 12, 17 42 U.S.C. § 7511a(e)

................................ ................................ ................................ .. 2

FEDERAL RULES OF APPELLATE PROCEDU RE Fed. R. App. P. 40(a)(2)

................................ ................................ ............................. 1

FEDERAL REGISTER 56 Fed. Reg. 56,694 (Nov. 6, 1991)

................................ ................................ ........... 2 74 Fed. Reg. 10,176 (March 10, 2009)

................................ ................................ ...... 5 Case: 09-71383 05/05/2011 Page: 4 of 25 ID: 7741750 DktEntry: 41-11 Pursuant to Rule 40 of the Federal Rules of Appellate Procedure and the associated rules of this Court, Respondent United States Environmental Protection Agency (“EPA”) respectfully requests p anel rehearing of certain aspects of the
Court ’s decision in Association of Irritated Residents, et al. v. EPA , 632 F.3d 584 ( 9th Cir. 201 1 ) (slip opinion attached here to)

. EPA believes the Court “overlooked or misapprehended” two important points of law, s ee Fed. R. App. P. 40(a)(2) , resulting in erroneous holdings regarding the imposition of sanctions under section 7509(a)(2) of the Clean Air Act (“the Act”) 1

1 Except as otherwise noted, statutory references are to Title 42 of the United States Code. and the circumstances under which an area must adopt transportation control measures pursuant to section 7511a(d)(1)(A) to offset increases in vehicle emissions . First, in holding that EPA had a duty to impose sanctions under section 7509(a)(2) when EPA disappro v ed California’s voluntarily

- revised attainment demonstration, the Court overlooked the fact that section 7509(a)(2) on its face applies only to “required” state implementation plan (“SIP”) submissions and not to voluntary submissions . Second, in holding that the Los Angeles

- South Coast Air Basin Area (“South Coast”) was unambiguously required under section 7511a(d)(1)(A) to implement transportation control measures even though aggregate vehicle emissions were decreasing , the Court failed to recognize , or defer to EPA’s reasonable interpretation of, the ambiguity Case: 09-71383 05/05/2011 Page: 5 of 25 ID: 7741750 DktEntry: 41-12 inherent in the s ection’s reference to a “growth in emissions. ” The Court’s erroneous holdings on these issues have profoundly costly and disruptive implications for EPA , S tates , and localities a c ross the nation, and likely will discourage States and localities from updating their Clean Air Act implementation plans except when absolutely required to do so by the Act

. BACKGROUND
I. STATUTORY BACKGROUND A. Select State Implement ation Plan Requirements in “Extreme” Nonattainment Areas As noted in earlier briefing in this case, t he South Coast i s designated “nonattainment” for the national ambient air quality standard (“NAAQS”) for 1

- hour ozone, and EPA has classified the South Co ast ozone nonattainment area as
“extreme” for 1

- hour ozone, with an attainment deadline of November 15, 2010.
See 56 Fed. Reg. 56,694, 56,726 (Nov. 6, 1991)

.

“ E xtreme” ozone nonattainment area s such as the South Coast are subject to stringent requiremen ts under the Act . Such areas were required to submit, within four years of enactment of the November 1990 CAA Amendments, a demonstration that the area’s SIP provides for attainment of the ozone NAAQS by the applicable deadline

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

. This so

called “attainment demonstration” includes both a control strategy and air quality modeling showing that the control strategy is sufficient to reduce emissions to Case: 09-71383 05/05/2011 Page: 6 of 25 ID: 7741750 DktEntry: 41-13 levels where violations of the NAAQS would not occur by the attai nment date. Extreme nonattainment areas must also adopt transportation control measures and strategies “to offset any growth in emissions from growth in vehicle miles traveled , ” and “to attain reduction in motor vehicle emissions as necessary , . . . to

co mply with the requirements of

. . . this section (pertaining to periodic emissions reduction requirements ) .” Id. § 7511a(d)(1)(A).
S ection 7506 (c) of the Act provides that before any transportation program or project located in a nonattainment area can r eceive federal approval or funding, that transportation activity must be found to “conform” with the applicable SIP. An activity “conforms” to an approved SIP if , based on the most recent estimates available, the anticipated emissions will not (1) frustra te the general purp ose of the SIP; (2) cause or contribute to a new violation of the NAAQS ; ( 3) worsen an existing violation; or (4) delay timely attainment of a NAAQS or other milestone. Id. § 7506(c)(1).
B. Federal Implementation Plans and Sanctions
I f a State fails to submit a SIP or EPA disapproves a SIP, in many instances EPA is required to promulgate a federal implementation plan (“FIP”) and to impose mandatory sanctions. The Act requires EPA t o promulgate a FIP within two years after the Adminis trator either “ finds that a State has failed to make a required submission or finds that the plan or plan revisio n” is incomplete, or Case: 09-71383 05/05/2011 Page: 7 of 25 ID: 7741750 DktEntry: 41-14 “disapproves a [SIP] in whole or in part.” Id. § 7410(c)(1)(A)

– (B). EPA is no longer required to promulgate a FIP if “th e State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such federal implementation plan.” Id. Certain mandatory sanctions set forth in section 7509(b) apply 2

C . The 2003 State Strategy and 2003 South Coas t Air Quality Management Plan when EPA
makes any on e of four findings regarding “any implementation plan or plan revision required under this part (or required in response to a finding of substantial inadequacy as described in section 7410(k)(5) of this title).” Id. § 7509(a). The four findings are: a f ailure to submit the plan; a determination that a submitted plan is incomplete; a disapproval of a submitted plan; or a determination that a state is not implementing an approved plan. Id. § 7509(a)(1)

– (4).

On January 9, 2004, the California Air Resources Board (“CARB”) submitted to EPA two SIP revisions related to the 1

- hour ozone standard : a plan
identif ying CARB’s regulatory agenda to reduce ozone in all areas of Californi a by
2010 (“2003 State Strategy”) , and the 2003 South Coast Air Quality Management Plan (“ AQMP ”) . T he 2003 South Coast AQMP was submitted by the State in light of new photochemical modeling performed by the South Coast Ai r Quality

2 These sanctions include prohibitions on new highway projects or grants, and limitatio ns on new construction or modification of major stationary sources of air pollution. Id. § 7509(b)(1)

– (2). Case: 09-71383 05/05/2011 Page: 8 of 25 ID: 7741750 DktEntry: 41-15 Management District purp orting 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. On March 10, 2009, EPA disapproved the revised at tainment demonstration because of its reliance on various state commitments originally included in the 2003 State Strategy , but withdrawn by CARB before EPA acted on the submission

. 74 Fed. Reg. 10,176 (Mar. 10, 2009). EPA concluded that its disapproval of the revised attainment demonstration did not trigger mandatory sancti ons under section 7509, because the State already had in place a plan that EPA had fully approved as meeting the attainment demonstrat ion obligation under section 7511a (c) and (e), and the revised attainment demonstration was not an implementation plan “required” under the Act. Id. at 10,177

. EPA approve d the State’s demonstration
that aggregate vehicle emissions would decline each year from the base year of the plan through the attai nment year of 2010. Absent a “growth in [aggregate] emissions” from motor vehicles, EPA concluded that no transportation control

measures we re required under section 7511a(d)(1)(A). Id. at 10,179

. II . PETITIONERS’ ARGUMENTS AND THE COURT ’S DECISION Peti tioners challenged several aspects of EPA ’ s March 10, 2009 final rule

. Relevant to this petition for rehearing, Petitioners argued that upon disapproving the S tate’s revised attainment demonstration for the 1

- hour ozone standard , EPA Case: 09-71383 05/05/2011 Page: 9 of 25 ID: 7741750 DktEntry: 41-16 should have required C alifornia to submit a new plan demonstrating attainment , notwithstanding that a previously

- approved attainment demonstration remained on
the books

. Petitioners also claim ed that EPA acted contrary to section
7511a (d)(1)(A) of the Act by not requiring the State to adopt transportation control

measures where vehicle emissions were higher than they would have been had vehicle miles traveled not increased , but , in fact , total vehicle emissions were declining. 3
On the first issue, t he Court held that in light of EPA’ s disapproval of the revised attainment demonstration , it must either “ promulgat [e] a FIP, issu [e] sanctions, or evaluat [e] the necessity of a SIP call.” 632 F.3d at 594

. On the second issue, t he Court held that EPA should have required California to adopt transportation control measures and strategies pursuant to section 7511a(d)(1)(A)
because the S tate projected that vehicle miles traveled would increase in the region through 2010, and the Court read the statute as unambig u ously providing that a

“ growth in emissions ” caused by an increase in vehicle miles traveled results

3 That aggregate vehicle emissions could decrease even though vehicle miles traveled increase is not as strange as it might sound; indeed, it could well be expected. It could, for instance, occur where there are more cars on the road than there were before due to an increase in population , but those cars on average are cleaner

- burning, due to the natural replacement of older more polluting models wit h newer models (including hybri d or electric vehicles ) . In such a case, emissi on levels w ould be higher than they would have been had vehicle miles traveled not increase d , but those emission levels c ould still be lower than previous levels based on prior vehicle miles traveled, offset by the overall emission reductions result ing from the introduction of the less

- polluting new cars or use of cleaner fuels

. Case: 09-71383 05/05/2011 Page: 10 of 25 ID: 7741750 DktEntry: 41-17 whenever vehicle emissions levels are greater than they would have been had vehicle miles not increased at all , even if overall vehicle emissions are decreasing

. Id. at 595

. ARGUMENT
I. THE COURT ERRONEOUSLY CONCLUDE D THAT EPA’S DISAPPROVAL OF THE 2 003 ATTAINMENT DEMON STRATION TRIGGERED SANC TIONS UNDER SECTION 7509 OF THE ACT EPA’s disapproval of the State’s revised attainment demonstration did not trigger sanctions under se ction 7509(a) , because the States’ attainment demonstration was not “required” under the Act. Respectfully, the Court ’s

statemen ts to the contrary are in error

. T he Court held that EPA’s disapproval of the State’s revised attainment demonstration triggere d the requirement of section 7410(c)(1)(B) , for EPA to promulgate a FIP unless the S tate correct ed the deficiency within two years, although the Court left open the possibility that “EPA can find that the state has ‘corrected the deficiency’” if EPA evalua tes the existing SIP and finds that it continues to meet the Act’s requirements

. 632 F.3d at 592

. The Court determined
that the FIP provision of section 7410(c)(1)(B) is not on its face limited to situations in which EPA disapprov es a “required” submissi on , and, in any event, held that the revised attainment demonstration submitted by the State was “required.” Id

. The Court further determined , without analysis, that the sanctions Case: 09-71383 05/05/2011 Page: 11 of 25 ID: 7741750 DktEntry: 41-18 requirement at section 7509 was similarly triggered by EPA’s disapproval o f the revised attainment demonstration. Id

. Th e sanctions provision, however, unlike the FIP provision , is expressly limited to “required” submissions. 42 U.S.C. § 7509(a) (“[f]or any implementation plan or plan revision required under this part . .

. . ”) (emphasis added). Thus, whether sanctions were triggered by EPA’s disapproval hinges on whether the revised attainment demonstration w as indeed a “required” submission. As explained below, the revision was not “required.” The Court stated that “larg e portions of the 2003 Attainment Plan were not discretionary.” 632 F.3d at 592

. In support, the Court pointed to the updated emissions inventor y required by sections 7502(c)(3) and 7511a(a)(3)(A), and the fact that the S tate chose to submit updated moto r vehicle emissions budgets to avoid a lapse in federal transportation funding, see 42 U.S.C. § 7506(c)(1). Neither of those provisions , however, establishes that the attainment demonstration was “required” under the Act. The Act does not require or prov ide for revisions to attainment demonstrations absent certain findings that EPA has not made with respect to the 1

- hour ozone standard in the South Coast. 4

4 For example , a new attainment demonstration is required where EPA has made a finding under section 74 10(k)(5) that the SIP is “substantially inadequate to attain or maintain the relevant [NAAQS],” or has made a finding under section 7509(c) that an area failed to attain the relevant NAAQS by the applicable attainment date. EPA has made no such finding s here. While S tates are always free to submit SIP updates and revisions to EPA, this does not render such Case: 09-71383 05/05/2011 Page: 12 of 25 ID: 7741750 DktEntry: 41-19 submission s “required” under the Act. The Court fundamentally erred in relying on the provisions of the Act that require nonattainment areas to periodically revise their emissions inventories ( sections 7502(c)(3) and 7511a(a)(3)(A)) as support for its co nclusion that the revised attainm ent demonstration was “required ” by the Act. See 632 F.3d at 592

. The provisions specific to attainment demonstrations, sections 7 502(c)(1) and
7511a (c)(2)(A), contain no such requirement for periodic revisions. Rather, the attainment demonstration provisions clearly contemplate only a one - time submission by the S tat e to meet the statutor y obligation. Under section 7502 (b), an
attainment dem onstration pursuant to section 7 50 2(c)(1) must be submitted by a date establishe d by the Administrator, which can be no later than three years following a d esignation of “nonattainment.” Similarly, section 7511a (c)(2) requires submission of an attainment demonstration within “4 years after November 15, 1990.” Significantly, section
7 511a makes no reference whatsoever to any later attainment demonstrations, and the lack of any such reference should have resolved the issue in EPA’s favor. Indeed, i n determining elsewhere in its opinion that the FIP obligation in section
7410 (c)(1)(B) i s not limited to instances in which the State fails to submit, or EPA disapproves, a “re quired” submission , the Court relied heavily on the canon of statutory construction that , “when Congress includes particular language in one Case: 09-71383 05/05/2011 Page: 13 of 25 ID: 7741750 DktEntry: 41-110 section of a statute but om its it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” 632 F.3d at 591 (internal quotations and citations omitted). T hat

same canon should have led the Court to conclude that no obligation to submit additional attainment demonstrations existed here, because Congress expressly included no such obligation in the statute, when other sections show that it could have done so if it had so intended. In short, t he absence of a requirement in section
7511a to periodically revise the attainment demonstration should be read as a purposeful omission by Congress, such that revisions to attainment d emonstrations are not “required ” by the Act. See Field v. Mans , 516 U. S. 59, 66 (1995)

. Similarly, the Panel erred in relying on the c onformity provisions of section 7506(c), which requires t hat conformity determinations be based on the most
recent estimates of emissions , as support for its conclusion that portions of the 2003 attainment plan submission were not discretionary. First, t his statutory requirement applies only to conformity determinations, which are made by federal agencies prior to funding or approving transportation plans and projects, and does not ap ply to SIPs ( including attainment demonstration SIPs ). Nothing in section
7 50 6 (c) requires S tates to make any adjustments or revisions to SIPs, whether in
relation to updated emissions estimates or otherwise. As a practical matter, m any S tates do elect t o revise their SIPs to reflect more recent emissions estimates , as Case: 09-71383 05/05/2011 Page: 14 of 25 ID: 7741750 DktEntry: 41-111 California did in this case , but this practice is voluntary and is not compelled by section 7 50 6(c) or by any other provision of the Act. EPA’s disapproval of the State’s voluntarily revi sed 1

- hour ozone attainment demonstration did not t rigger sanctions under section 7 509, because on its face that provision applies only to “required” submissions. Even if the interplay of the relevant statutory provisions were ambiguous, however, the Cour t should have deferred to EPA’s reading of how to harmonize them with one another under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837,
842

– 44 (1984). The Court erred in holding otherwise

. I I . THE COURT ERRED IN FAILING TO D EFER TO EPA’S REASONABLE INTERPRETATION OF THE AMBIGUOUS STATUTORY REFERENCE TO “GROWTH IN EMISSIONS”
A bedrock principle of administrative law is that a cou rt must not substitute its own judgment as to the meaning of an ambiguous statut ory provision for an
agency ’s reasonable interpretation. See Chevron , 467 U.S. at 842

– 44; California Wilderness Coalition v. U.S. Department of Energy , 631 F.3d 1072, 1084 (9 th Cir. 2011) . The statutory provision at issue in this case, section 7511a(d)(1)(A), does not sp ecify how to calculate a “growth in emissions” from growth in vehicle miles traveled or numbers of vehicle trips, because it does not specify whether the term “emissions” refers to emissions from motor vehicles in the aggregate or just to levels of emissio ns (whether increasing or decreasing) affected by the increase in Case: 09-71383 05/05/2011 Page: 15 of 25 ID: 7741750 DktEntry: 41-112 vehicle miles traveled or numbers of vehicle trips. The Court imp ermissibly resolved this statutory ambiguity by weighing EPA’s interpretation of this language again st Petitioners’ interpre tation , and then adopting Petitioners’

. The
Court ’s failure to acknowledge th is statutory ambiguity and defer to EPA’s reasonable interpretation u nder Chevron was in error

. The Court conclud ed that the following language unambiguously requires
S tates to adopt transportation control measures and strategies whenever vehicle emissions are projected to be higher than they would have been had vehicle miles traveled not increased , even when aggregate vehicle emissions are actually
de creasing: [States mus t submit a SIP revision ] that identifies and adopts specific enforceable transportation control 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 reducti on requirements of this subpart , to comply with the requirements of subsection (b)(2)(B) and (c)(2)(B) of this section (pertaining to periodic emissi ons reduction requirements)

. 42 U.S.C. § 7511a(d)(1)(A) (emphasis added) ; see 632 F.3d at 596

. T he statute , however, does not define what constitutes a “growth in emissions”

– how EPA is

to determine whether, and to what extent, there will be a “growth in emissions” caused by a growth in vehicle miles traveled is left utterly unexplained

. Chevron requires the Court to have deferred to E PA’s reasonable interpretation that there is Case: 09-71383 05/05/2011 Page: 16 of 25 ID: 7741750 DktEntry: 41-113 no “growth in emissions” to offset (and transportation control measures a re thus not required) where a S tate demonstrates that aggregate vehic le emissions are in
fact not increasing from prior levels , notwithstanding any growth in vehicle miles traveled or numbers of vehicle trips taken

. The interpretation adopted by the C ourt , which looks only to whether vehicle emissions (even if actually decreasing over time) are higher than they would have been had the number of vehicle miles traveled remained constant, is

not dictated by the plain terms of the statute. Although the Co urt held that the baseline by which to identify a “growth in emissions” “ must be viewed as any increase in emissions due solely to VMT,” see 632 F.3d at 596 (emphasis added) , the statute does not on its face mandate that baseline or otherwise compel readin g “growth” to refer to vehicle emissions that are actually decreasing in the aggregate notwithstanding any growth in vehicle miles traveled . Rather, the statute does not

answer whether there can be a “growth in emissions” where vehicle emissions are highe r than they would have been if the number of vehicle miles traveled had remained constant, but are actually lower than they were before as a result of clea ner vehicles entering the fleet and other factors that reduce vehicle emissions

. The Court recogniz ed that there must be “growth” of two distinct elements to trigger the transportation control measure requirement

– growth in vehicle miles traveled and growth in resulting emissions

– and that growth in the former does not Case: 09-71383 05/05/2011 Page: 17 of 25 ID: 7741750 DktEntry: 41-114 necessarily represent growth in the latter. See id. at 595

. The statute is thus readily susceptible to EPA’s longstanding interpretation that there is no “growth in emissions” to be offset where aggregate vehicle emissions have actually decreased and are projected to continue to decrea se. Although the Court purported to adhere

to Chevron ’s “familiar two

- step procedure , ” id. at 596 , it appears to have impermissibly resolved statutory ambiguity in favor of what it determined to be its preferred interpretation. The Court ’s criticisms of EPA’s interpretation are not accurate. First, the
Court incorrect ly state d that “EPA’s interpretation only gives effect to the second clause of the relevant sentence, and not to the first.” 632 F.3d at 596 . The Court stated that EPA’s interpretation addressed the requirement to impose transportation control measures as needed “to attain reduction in motor vehicle emissions [to comply with periodic emissions reduction requirements],” but not the requirement to offset “growth in emissions from growth in vehicle miles traveled.” Id. 596

– 97. To the contrary, EPA has consistently read these two elements as separate, and would require adoption of transportation control measures if an increase in vehicle miles traveled caused an increase in aggregate vehicl e emissions , even if adoption of transportation control measures would not be required (under the second clause of the provision) because no reduction in motor vehicle emissions would be
necessary to meet periodic emissions reduction requirements , and vice versa . Case: 09-71383 05/05/2011 Page: 18 of 25 ID: 7741750 DktEntry: 41-115 Indeed, t he separate clauses may require different numbers and kinds of offsetting transportation control measures, on different implementation schedules. EPA’s
i nterpretation is not , as the Court inaccurately stated, redundant. Second, the Cour t erred in concluding that legislative history “clearly refutes” EPA’s interpretation. 632 F.3d at 597

. The proper question is not whether legislative history “refutes” EPA’s interpretation, but whether legislative history clarifies an otherwise ambiguou s statute. 5

Under the interpretation adopted by the Court , any level of vehicle In any event, here the legislative history does n either . W hile a Ho use Committee Report state s that the phrase “growth in emissions” should be measured according to “the level of emissions that would occur if VMT held constant in the area,” s uch a baseline conflicts with both the pla i n text of the statute and the Court ’s conclusion that there must be growth i n each of the separate elements ( vehicle emissions and vehicle miles traveled ) to trigger the control requirement. See id

. S uch an appr oach essentially reads the phrase “growth in emissions” out of the statute, rendering it mere surplusage, as if all the Act requires is a simplistic analysis of whether vehicle miles traveled are increasing.

5 “ [L] egislative history is irrelevant to the interpretation of an unambiguous statute.” Davis v. Michigan Dep’t of Treasury , 489 U.S. 803, 808 n.3 (1989); United States v. Daas , 198 F.3d 1167, 1174 (9th Cir. 1999) ( “ If the statute is ambiguous

– and only then

– courts may look to its legislative history for evidence of congressional intent.”). Case: 09-71383 05/05/2011 Page: 19 of 25 ID: 7741750 DktEntry: 41-116 emissions, even if reduced to near zero , would trigger the control measure requirement if vehicle miles traveled increase d , for emissions would always be higher than if the number of vehicle miles traveled had remained constant. This reading leads to the absurd result that transportation control measures or strategies will always be required if vehicle miles traveled increase , unless a vehicle fleet is
100% electric and causes n o tail

- pipe emissions at all , no matter what the level of vehicle miles traveled

. T he Court recognized that growth in vehicle miles traveled alone should not be viewed as automatically showing a “corr esponding” growth in emissions, see 632 F.3d at 596 , yet its i nterpretation does exactly that. The Court mentio n ed the “possibility” that “advances in clean car technology” would one day allow for increases in vehicle miles traveled without a “ corresponding ” increase in vehicle emissions , id. , yet under the Court ’s reading nothing shor t of a 100% electric fleet wit h zero tailpipe emissions would have that effect

. EPA’s interpretation ensures that transportation control measures and strategies are adopted to offset any increase in vehicle miles traveled that causes an
increase in actual aggregate vehicle emission s in the area

. Such an increase would reflect an emissions “growth” in comparison to the actual levels of emissions in a previous year ( a growth which m ight need to be remedied for an area to achieve its air quality goals), rather than simply a lesser rat e of decrease of such emissions (which may not impair an area’s ability to meet air quality goals). The Court ’s Case: 09-71383 05/05/2011 Page: 20 of 25 ID: 7741750 DktEntry: 41-117 ruling, instead, will force States and localities to offset any growth in vehicle miles traveled simply for its own sake, and devote scar c e res ources to address already declining motor vehicle emissions at the possible expense of other emissions sources whose pollution contribution may be in fact growing. Other le gislative history cited by the Court , id. at 597 , speaks only to offsetting growt h in vehicle miles traveled, without reference to growth in emissions. That legislative history is thus unhelpful in interpreting the meaning of “growth in emissions,” and directly disregards the statute’s direction that transportation control measures ar e needed to offset any “ growth in emissions from growth in vehicle miles traveled.” 42 U.S.C. § 7511a(d)(1 ) (A) (e mphasis added )

. Indeed, reliance on that legislative history conflicts with the Court ’s own recognition that growth in emissions and growth i n vehicle miles traveled are to be analyzed as separate questions. See 632 F.3d at 596

. It was erro r for the Court to rely on legislative history to “ bolster ” its reading of what it declared to be an unambiguous statute, see id. at 2093, particularly bec ause the legislative history fails to elucidate an interpretation that is both consistent with the language of the statute and workable as a practical matter. See BedRoc Ltd. v. United States , 541 U.S. 176, 187 n.8 (2004) (courts “resort to legislative hi story only when necessary to interpret ambiguous statutory text”). The statutory provision is ambiguous on its face because it fails to specify Case: 09-71383 05/05/2011 Page: 21 of 25 ID: 7741750 DktEntry: 41-118 how EPA is to determine whether a “growth in emissions” will o ccur. It could be read the way the Court read s it

– to require adoption of transportation control

measures whenever vehicle emissions are higher than they would have been had vehicle miles traveled not increased

– but it may equally be read (as EPA reads it) to require adoption of transportation cont rol measures only when aggregate vehicle emissions increase as a result of an increase in vehicle miles traveled. Under Chevron , t he Court erred by failing to defer to EPA’s reasonable interpretation of the provision

. CONCLUSION For the reasons stated above, the Court should grant rehearing on the two issue s raised herein

. Respectfully submitted,
DATE D : May 5 , 20 11

OF COUNSEL:
JEFFERSON L. WEHLING Office of Regional Counsel U.S. EPA Region IX 75 Hawthorne Street San F rancisco, CA 94105
JAN M. TIERNEY MICHAEL W . THRIFT Office of General Counsel U.S. EPA IGNACIA S . MORENO Assistant Attorney General Environment & Natural Res ources Div.
/s/ Austin D. Saylor

. AUSTIN D. SAYLOR United States Department of Justice Environment & Natural Resources Div

. Environmental Defense Section P.O. Box 23986 Washington D.C. 20026

- 3986 Tel: (202) 514

- 1880 Fax: (20 2) 514

- 8865 austin.saylor@usdoj.gov Counsel for Respondent EPA Case: 09-71383 05/05/2011 Page: 22 of 25 ID: 7741750 DktEntry: 41-119 Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Mail Code: 2344A Washington, DC 20460 Case: 09-71383 05/05/2011 Page: 23 of 25 ID: 7741750 DktEntry: 41-120 CERTIFICATE OF COMPLIANCE PURSUANT TO CIRCUIT RULE 40
- 1 I certify that pursuant to Circuit Rule 40

- 1, the attached petition for panel

re hearing/petition for rehearing en banc is proportionally spaced, has a 14

- point typeface, and contains 4 , 185 words, as counted by Microsoft Word, excluding the portions of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

DATED: May 5 , 2011 /s/ Austin D. Saylor

. AUSTIN D. SAYLOR United States Department of Justice Environment & Natural Resources Div

. Environmental Defense Section P.O. Box 23986 Washington D.C. 20026

- 3986 Tel: (202) 514

- 1880 Fax: (202) 514

- 8865 austin.saylor@usdoj.gov

Counsel for Respondent EPA Case: 09-71383 05/05/2011 Page: 24 of 25 ID: 7741750 DktEntry: 41-121 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing PETITION FOR PANEL REHEARING with the Clerk of Court for the United States Cour t of Appeals for the Ninth Circuit by using the appellate CM/ECF system on May 5,
20 11

. 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 United States Department of Justice Environment & Natural Resources Div

. Environmental Defense Section P.O. Box 23986 Washington D.C. 20026

- 3986 Tel: (202) 514

- 1880 Fax: (202) 514

- 8865 austin.saylor@usdoj.gov Counsel for Respondent EPA Case: 09-71383 05/05/2011 Page: 25 of 25 ID: 7741750 DktEntry: 41-1