1 of 49 DOCUMENTS

Ass'n of Irritated Residents v. United States EPA

No. 09-71383, No. 09-71404

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

686 F.3d 668; 2012 U.S. App. LEXIS 1704; 74 ERC (BNA) 1264

November 1, 2010, Argued and Submitted, San Francisco,

California

January 27, 2012, Amended

DISPOSITION: PETITION GRANTED.

OPINION

[*671] Opinion by Judge Thomas

THOMAS, Circuit Judge:

The Association of Irritated

Residents, El Comité para el Bienestar

de Earlimart, the Community of

Children's Advocates Against Pesticide

Poisoning, and the Natural Resources

Defense Council, petition for review

of ...

a final action by the Environmental

Protection Agency approving in part

and disapproving in part revisions to

California's State Implementation Plan

for meeting air quality standards for

ozone under the Clean Air Act. We have

jurisdiction under 42 U.S.C. §

7607(b)(1). We grant the petition for

review and remand to EPA for further

consideration.

I

A

Congress enacted the Clean Air Act

(the "Act") to help protect and

enhance the nation's air quality. 42

U.S.C. §§ 7401-7671q. The Act requires

the Environmental Protection Agency

("EPA") to establish National Ambient

Air Quality Standards ("NAAQS") for a

variety of pollutants, one of which is

ozone.1 Id. §§ 7408-09. EPA then

designates areas as "attainment" or

"nonattainment" based on whether the

areas meet the clean air standards for

each particular pollutant. Id. §

7407(d). EPA classifies nonattainment

areas based on the severity of the

area's pollution, from Marginal to

Extreme. Id. § 7511(a). The area at

issue in this litigation--the Los

Angeles-South Coast Air Basin ("South

Coast")--is classified as Extreme. 73

Fed. Reg. 63,408, 63,409 (Oct. 24,

2008) (to be codified at 40 C.F.R. pt.

52).

1Ground-level ozone is a primary

component of what is commonly

known as "smog." It is formed

when oxides of nitrogen (NOx),

volatile organic compounds (VOC),

and oxygen react in the presence

of sunlight, generally at

elevated temperatures. When

inhaled, even at very low levels,

ozone can cause serious health

problems by damaging lung tissue

and sensitizing lungs to other

irritants. See 73 Fed. Reg.

63,408, 63,409 (Oct. 24, 2008)

(to be codified at 40 C.F.R. pt.

52).

Under the Act, states have primary

responsibility for ensuring that the

quality of their air satisfies the

NAAQS, and they must detail their

efforts in a State Implementation Plan

("SIP") for each region within that

state. 42 U.S.C. § 7410(a). States

must submit these SIPs and SIP

Page 1
revisions to EPA for review. EPA may

either fully approve the plan,

partially approve and partially

disapprove the plan, or conditionally

approve the plan. Id. § 7410(k). Once

approved, SIPs become enforceable as

federal law. Id. § 7413.

An EPA determination that a state

has failed to submit a required plan,

or EPA disapproval of a submitted

plan, triggers two time periods.

First, a "sanctions clock" begins

during which time the state must

either remedy the deficiency or face

sanctions. Id. § 7509(a)-(b). Second,

a "FIP clock" begins by the end of

which EPA must either approve a

state-submitted SIP or promulgate a

Federal Implementation Plan ("FIP").

Id. § 7410(c)(1). Additionally, EPA

must issue a "SIP call," and thereby

require the state to make necessary

revisions, if it finds that a

previously approved SIP is

"substantially inadequate" to attain

or maintain air quality standards. Id.

§ 7410(k)(5).

The Act also contains "conformity"

requirements. Under these conformity

provisions, the federal government may

not [*672] approve, accept, or fund

any transportation plan, program, or

project unless it conforms to an

approved SIP. Id. § 7506(c). To make

conformity determinations,

transportation agencies must look to

an approved SIP to find the maximum

amount of pollution allowed from motor

vehicle emissions. This motor vehicle

emissions budget ("MVEB") is

determined by the states in their SIPs

by identifying the total allowable

emissions consistent with meeting the

statutory clean air requirement, and

then allocating that total among

various types of sources, such as

motor vehicles. 40 C.F.R. § 93.101.

Because SIPs sometimes take years to

review, EPA may make preliminary

adequacy determinations regarding the

MVEBs found in the SIPs. Id. § 93.118.

After further review, EPA may declare

the MVEB to be inadequate. Id. §

93.118(e)(3).

In addition to the SIPs and

conformity requirements applicable to

all areas, the Act contains further

requirements for nonattainment areas,

depending on the severity of the ozone

problem in the area. 42 U.S.C. §§

7511-7511f. Two of these requirements

are at issue in this case. The first

requirement is for these nonattainment

areas to submit SIP revisions

demonstrating attainment of the ozone

standard by the applicable date. These

"attainment plans" have two main

parts: (1) a control strategy to reach

compliance; and (2) an attainment

demonstration to show that under the

strategy the area will meet the NAAQS

by the statutory deadline. Id. §§

7511a(c)(2)(A), (d)-(e);

7410(a)(2)(A).

The second requirement for these

nonattainment areas is to develop

enforceable transportation strategies

and control measures "to offset any

growth in emissions from growth in

vehicle miles traveled . . . and to

attain reduction in motor vehicle

emissions as necessary." Id. §

7511a(d)(1)(A). Suggested

transportation control measures

include programs for improved public

transit, restrictions of certain lanes

for high occupancy vehicles, and

programs for secure bicycle storage

facilities. Id. § 7408(f)(1)(A).

B

In 1994, California submitted a SIP

revision that included an ozone

attainment demonstration for the South

Coast nonattainment area and a

"Pesticide Element" designed to reduce

emissions from pesticide applications.

In 1997, EPA approved the SIP revision

with respect to both the ozone

attainment demonstration and the

Pesticide Element. In 1999, California

sought again to update the SIP with

new emissions inventories and a new

ozone attainment demonstration. EPA

approved these elements in 2000. All

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74 ERC (BNA) 1264
of these plans and revisions form the

1997/1999 South Coast Ozone SIP

("1997/1999 SIP").

After EPA approved the 1997/1999

SIP, California conducted new

modeling, demonstrating that the

existing SIP underestimated vehicle

pollution in the area. Specifically,

California realized that, with respect

to ozone:

[T]he basic strategy of the

1997 Plan and the 1999

amendments must be

significantly overhauled to

address the new realities of

higher mobile source

emissions and lower carrying

capacities for ozone as

indicated by new modeling

and meteorological episodes.

Additional reductions, above

and beyond those committed

to in the 1997 Plan and 1999

amendments, will be

necessary to demonstrate

attainment with the federal

ozone standard and present a

significant challenge.

Concluding that "a plan update

[was] necessary," California submitted

the 2003 SIP Revision to EPA in 2004.

The 2003 SIP Revision consisted, in

relevant part, of [*673] three

things: the 2003 Attainment Plan,

PEST-1, and a demonstration that no

transportation control measures were

required. Petitioners seek review of

EPA's final determination as to each

of these three elements.

The 2003 Attainment Plan revised

the existing SIP in two ways. First,

it updated the attainment

demonstration (and therefore the

MVEBs) to account for the increased

emissions projections under the new

modeling. Second, it added additional

control measures to offset the

increase in predicted pollution. In

2004, EPA found the MVEBs in the

attainment demonstration adequate for

purposes of the conformity provisions,

but did not make a final decision as

to the 2003 Attainment Plan as a

whole. In 2008, California withdrew

some of the 2003 Attainment Plan's key

elements, including many of the

control measures.

PEST-1 was a control strategy that

called for continued implementation of

the Pesticide Element approved in the

1997/1999 SIP. In 2008, we concluded

that the portion of the Pesticide

Element representing the enforceable

commitment (the Wells Memorandum), was

not part of the 1997/1999 SIP. See El

Comité para el Bienestar de Earlimart

v. Warmerdam, 539 F.3d 1062 (9th Cir.

2008).

Finally, because nonattainment

areas must propose enforceable

transportation control measures "to

offset any growth in emissions from

growth in vehicle miles traveled,"

California submitted to EPA a

demonstration purporting to show that

there would be no such growth in

emissions. Although California

acknowledged that vehicle miles

traveled would increase by about 30%,

it showed that aggregate motor vehicle

emissions would decrease.

In 2008, EPA proposed to approve

the control measures that were not

withdrawn from the 2003 Attainment

Plan (including PEST-1), but

disapprove the attainment

demonstration (and therefore the

MVEBs) in the 2003 Attainment Plan

because the demonstration was largely

based on the withdrawn commitments.

EPA explained the consequences of its

proposed partial disapproval by

saying: "No sanctions clocks or FIP

requirement would be triggered by our

disapprovals, if finalized, because

the approved [1997/1999] SIP already

contains the plan elements that we are

proposing to disapprove." 73 Fed. Reg.

63,408, 63,419 (Oct. 24, 2008) (to be

codified at 40 C.F.R. pt. 52). EPA

also proposed to approve California's

assertion that no transportation

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74 ERC (BNA) 1264
control measures were required based

on California's demonstration that

there would be no growth in aggregate

vehicle emissions.

In 2009, after considering public

comments from petitioners on the

proposed rule, EPA finalized action on

the 2003 SIP Revision as proposed.

This timely petition for review

followed.

Petitioners raise three issues in

their petition for review. First, they

contend EPA's failure to order

California to submit a revised

attainment plan for the South Coast

after it disapproved the 2003

Attainment Plan was arbitrary and

capricious. Second, petitioners

contend EPA's approval of PEST-1

violates the Clean Air Act because

PEST-1 lacks enforceable commitments.

Third, petitioners contend EPA

violated the Act by failing to require

transportation control measures to

combat the increase in vehicle miles

traveled. We grant the petition as to

all three claims.

II

EPA's failure to evaluate the

adequacy of the existing SIP was

arbitrary and capricious. The Act

requires each nonattainment area to

submit a SIP that includes an

attainment demonstration for [*674]

the 1-hour ozone standard. 42 U.S.C. §

7511a(c)(2)(A), (d)-(e). Although EPA

approved such an attainment

demonstration for the South Coast in

the 1997/1999 SIP, California

submitted a revised attainment

demonstration in the 2003 Attainment

Plan, which made clear that the

attainment demonstration in the

1997/1999 SIP was not accurate. When

EPA partially disapproved the 2003

Plan's attainment demonstration

(because California subsequently

revoked many of the control strategies

on which the attainment demonstration

was based), EPA concluded that no

further action was required. See 74

Fed. Reg. 10,176, 10,177 (Mar. 10,

2009) (to be codified at 40 C.F.R. pt.

52) ("[N]o sanctions clocks or Federal

Implementation plan (FIP)

requirement[s are] triggered by our

disapprovals because the plan

revisions that are the subject of the

proposed disapprovals represent

revisions to previously-approved SIP

elements that EPA determined met the

CAA requirements, and thus, the

revisions are not required under the

Act.").

EPA is mistaken that its duties

under the Act end upon approval.

Instead, EPA had an affirmative duty

to evaluate the existing SIP and

determine whether a new attainment

demonstration was necessary to ensure

California satisfies the Act's

attainment requirements. Its failure

to evaluate the adequacy of the

existing SIP in any way was arbitrary

and capricious.

Through the 2003 SIP Revision, EPA

knew, or should have known, of the

inadequacy of the 1997/1999 SIP. As

California specifically stated, "this

revision points to the urgent need for

additional emission reductions (beyond

those incorporated in the 1997/99

Plan) to offset increased emission

estimates from mobile sources and meet

all federal criteria pollutant

standards within the time frames

allowed under the federal Clean Air

Act." EPA's public comments also

indicate that it understood that the

new modeling undermined the existing

SIP. See, e.g., 73 Fed. Reg. 63,408,

63,415 (Oct. 24, 2008) (to be codified

at 40 C.F.R. pt. 52) ("[I]n view of

the magnitude of the reductions now

understood to be needed for attainment

of the 1-hour ozone NAAQS in the South

Coast, [California] has adopted

[additional control measures]."); id.

at 63,416 ("[California] revised the

1-hour ozone attainment demonstration

in the 2003 South Coast [Air Quality

Management Plan (AQMP)] in light of

updated emissions inventories that

show higher mobile source emissions

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74 ERC (BNA) 1264
than prior projections and updated

modeling that indicates a lower

carrying capacity in the air basin.").

However, even if EPA did not actually

know the extent to which the new

modeling undermined the existing SIP,

it has a duty to evaluate the adequacy

of the existing SIP as a whole when

approving SIP revisions. See Hall v.

U.S. EPA, 273 F.3d 1146, 1159 (9th

Cir. 2001) ("The EPA must be able to

determine that, with the revisions in

place, the whole 'plan as . . .

revised' can meet the Act's attainment

requirements." (quoting Train v.

Natural Res. Def. Council, 421 U.S.

60, 90, 95 S. Ct. 1470, 43 L. Ed. 2d

731 (1975)). In partially approving

the 2003 Plan, EPA should have

analyzed the adequacy of the whole

1997/1999 SIP.

The closer question is whether,

given the knowledge that a previously

approved SIP likely no longer meets

the Act's attainment requirements, EPA

has an affirmative obligation to

request a new attainment

demonstration. Two sections of the Act

may give rise to such an affirmative

duty. The first is the requirement

that EPA issue a FIP when it

disapproves any plan or plan revision.

42 U.S.C. § 7410(c)(1); see also id. §

7509 (mandating sanctions upon

disapproving a required State

submission). The second is the

requirement [*675] that EPA issue a

SIP call upon a finding that the

existing SIP is substantially

inadequate. Id. § 7410(k)(5).

EPA argues that the FIP clock is

triggered only where the plan revision

is "required" under the Act. The first

step in statutory construction cases

is to begin with the language of the

statute. Barnhart v. Sigmon Coal Co.,

Inc., 534 U.S. 438, 450, 122 S. Ct.

941, 151 L. Ed. 2d 908 (2002). The

plain text refutes EPA's argument.

Section 7410(c)(1) states:

The Administrator shall

promulgate a Federal

implementation plan at any

time within 2 years after

the Administrator--

(A) finds that a

State has failed

to make a required

submission or

finds that the

plan or plan

revision submitted

by the State does

not satisfy the

minimum criteria

established under

subsection

(k)(1)(A) of this

section, or

(B) disapproves

a State

implementation

plan submission in

whole or in part,

unless the State corrects

the deficiency, and the

Administrator approves the

plan or plan revision,

before the Administrator

promulgates such Federal

implementation plan.

42 U.S.C. § 7410(c)(1). Although

subsection (A) applies to "required"

submissions, subsection (B), which

applies to disapprovals of SIPs and

SIP revisions, does not have such a

limit. "Nor should we infer as much,

as it is a general principle of

statutory construction that when

'Congress includes particular language

in one section of a statute but omits

it in another section of the same Act,

it is generally presumed that Congress

acts intentionally and purposely in

the disparate inclusion or

exclusion.'" Barnhart, 534 U.S. at 452

(quoting Russello v. United States,

464 U.S. 16, 23, 104 S. Ct. 296, 78 L.

Ed. 2d 17 (1983)).

EPA contends that reading

subsection (B) as requiring EPA to

issue a FIP whenever it disapproves a

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74 ERC (BNA) 1264
discretionary 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." EPA provides as an

example a state proposing a revision

to make an existing SIP less

stringent, arguing that requiring a

FIP when EPA disapproves such a

relaxing of the SIP would be

irrational. EPA's point is well taken

in a situation where the existing SIP

remains adequate to attain the NAAQS.

The facts in this case, however, are

much different because EPA knew, or

should have known, that the "fully

approved SIP" was no longer adequate.

While it may seem counterintuitive to

require EPA to promulgate a FIP when

it disapproves a revision seeking to

undercut an effective existing SIP, it

is entirely logical to require EPA to

promulgate a FIP when it disapproves a

revision seeking to update what it

recognizes are serious deficiencies in

an existing SIP.

Furthermore, although the plain

language requires a FIP every time EPA

disapproves a plan revision, the FIP

can be avoided if an existing plan is

in place that meets the Act's

requirements because § 7410(c)(1) has

a grace period in which states can

bring their plans into compliance

before the FIP is enacted. See 42

U.S.C. § 7410(c)(1) (mandating a FIP

"unless the State corrects the

deficiency"). EPA must simply evaluate

the existing SIP (as already required

under Hall, 273 F.3d at 1159), and if

it meets the Act's requirements, EPA

can find that the state has "corrected

the deficiency," 42 U.S.C. §

7410(c)(1).

This analysis aligns with

Congress's intent in writing the

statutory language to mandate

promulgation of a FIP upon any

disapproval. In 1988, when Congress

was [*676] debating the amendments to

the Clean Air Act, EPA sought an

amendment that would have left

promulgation of FIPs solely to EPA's

discretion. See Coal. for Clean Air v.

S. Cal. Edison Co., 971 F.2d 219, 223

(9th Cir. 1992) (citing S. 1630, 101st

Cong. § 105 (1989)). Although the

Senate passed such an amendment, a

House Committee deleted the language,

and the "House language retaining

EPA's mandatory obligation to

promulgate a FIP whenever it

disapproves a SIP was ultimately

enacted by Congress and signed into

law." Id. (citing Clean Air Act

Amendments of 1990, Pub. L. No.

101-549, 104 Stat. 2399).

Even if, as EPA argues, the FIP

requirement is triggered only when the

revision was "required" under the

Act--and not upon every EPA

disapproval of a plan revision as we

determined above--the partial

disapproval of the 2003 SIP Revision

here still triggers the FIP

requirement because large portions of

the 2003 Attainment Plan were not

discretionary. For example, the Act

explicitly requires states with

nonattainment areas to update their

SIPs every three years with a revised

inventory of actual emissions from all

sources of relevant pollutants. See 42

U.S.C. §§ 7502(c)(3); 7511a(a)(3)(A).

Additionally, the Act requires

transportation projects to conform to

the existing SIP and states that,

"[t]he determination of conformity

shall be based on the most recent

estimates of emissions, and such

estimates shall be determined from the

most recent population, employment,

travel and congestion estimates . . .

." Id. § 7506(c)(1)(B). The conformity

provisions thereby require a state to

submit a SIP revision to ensure the

MVEBs in the SIP are current,

otherwise the state will not be able

to receive federal funding. Indeed,

the 2003 SIP Revision explicitly

referenced these two reasons in

explaining why it submitted the

changes:

The California Clean Air Act

requires a nonattainment

area to update its AQMP

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74 ERC (BNA) 1264
triennially to incorporate

the most recent available

technical information.2 In

addition, U.S. EPA requires

that transportation

conformity budgets be

established based on the

most recent planning

assumptions (i.e., within

the last 5 years). Both the

1997 SIP and the 1999

amendments were based on

demographic forecasts of the

mid-1990's using 1993 as the

base year. Since then,

updated demographic data has

become available, new air

quality episodes have been

identified, and the science

for estimating motor vehicle

emissions and air quality

modeling techniques for

ozone and PM10 have

improved. Therefore, a plan

update is necessary to

ensure continued progress

toward attainment and to

avoid a transportation

conformity lapse and

associated federal funding

losses.

2Although the 2003 SIP Revision

references the triennial

requirement in the California

Clean Air Act, the Federal Clean

Air Act also mandates such a

triennial inventory. See 42

U.S.C. §§ 7502(c)(3);

7511a(a)(3)(A).

In summary, EPA's duty to issue a

FIP represents one statutory source of

EPA's duty to take further action upon

partial disapproval of California's

2003 Attainment Plan.

Alternatively, EPA's obligation to

take further action can be derived

from the statutory requirement that

the Administrator issue a SIP call

upon a finding that the existing SIP

is substantially inadequate. 42 U.S.C.

§ 7410(k)(5) ("Whenever the

Administrator finds that the

applicable implementation plan for any

area is substantially inadequate to

attain or maintain the relevant

national ambient air quality standard

. . . or to otherwise comply [*677]

with any requirement of this chapter,

the Administrator shall require the

State to revise the plan as necessary

to correct such inadequacies."). EPA

argues that the decision about when

and whether to review an existing SIP

for substantial inadequacy is entirely

within the Administrator's discretion.

In support of this argument, EPA cites

the text of the statute and two

out-of-jurisdiction cases. The text of

§ 7410(k)(5), however, only says that

the Administrator must make the

finding, not that the finding must be

a product of Administrator-initiated

review procedures. The two cited cases

also provide little support for EPA

because they only show that the

Administrator must have some

discretion in deciding whether to find

a SIP substantially inadequate. See

Sierra Club v. Johnson, 541 F.3d 1257,

1265-66 (11th Cir. 2008); Citizens

Against Ruining the Env't v. EPA, 535

F.3d 670, 677-78 (7th Cir. 2008). We

do not dispute this point. However,

the question is not whether EPA has

discretion in determining substantial

inadequacies exist, but whether EPA

has unlimited discretion to ignore

evidence indicating an existing SIP

might be substantially inadequate and

choose to do nothing. We believe EPA's

failure to act in light of the strong

evidence provided in the 2003 SIP

Revision demonstrating the substantial

inadequacies of the 1997/1999 Plan is

arbitrary and capricious. See Motor

Vehicle Mfrs. Ass'n of U.S. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43, 103 S. Ct. 2856, 77 L. Ed. 2d 443

(1983) ("Normally, an agency rule

would be arbitrary and capricious if

the agency . . . entirely failed to

consider an important aspect of the

problem . . . ."); see also 1000

Friends of Maryland v. Browner, 265

F.3d 216, 235 (4th Cir. 2001) (leaving

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74 ERC (BNA) 1264
open the possibility that "there may

be cases where previously performed

modeling is inadequate to demonstrate

attainment such that EPA's failure to

require new modeling in those cases

might be found to be arbitrary or

capricious"). EPA's decision to do

nothing is especially troublesome in

light of the Act's overall purpose of

ensuring states come into compliance

with clean air standards. See 42

U.S.C. § 7470.

EPA also notes that a demonstration

that the 1997/1999 SIP is outdated or

ineffective is not equivalent to

finding that the SIP as a whole is

substantially inadequate because a SIP

is a complex, multi-faceted set of

obligations. Again, the determination

about whether the SIP is substantially

inadequate is within the

Administrator's discretion. We merely

determine that the Act requires EPA to

evaluate the existing SIP and actually

make the determination as to whether a

new attainment demonstration is

required.

Because EPA's failure to evaluate

the adequacy of the existing SIP was

arbitrary and capricious in light of

the 2003 SIP Revisions alerting EPA to

the new modeling, we grant the

petition for review. Specifically, EPA

has an affirmative duty to ensure that

California demonstrate attainment with

the NAAQS, see 42 U.S.C. §§

7410(a)(2)(A), 7502(c)(6), either by

promulgating a FIP or evaluating the

necessity of a SIP call.

III

EPA's action in approving the

pesticide element of the SIP was

arbitrary and capricious. EPA approved

PEST-1--the portion of the 2003 SIP

Revision re-committing to implementing

the Pesticide Elements from the

1997/1999 Plan--in its 2009 final

action. Petitioners claim our decision

in Warmerdam, 539 F.3d at 1072, in

which we stated the Wells Memorandum

was not part of the existing SIP,

rendered the Pesticide Element's

commitments discretionary, thereby

violating the Act. See 42 U.S.C. §

7410(a)(2)(A) ("Each implementation

[*678] plan . . . shall include

enforceable emission limitations and

other control measures, means, or

techniques . . . as well as schedules

and timetables for compliance."); §

7502(c)(6) (same).

EPA does not address the merits of

this contention. It only argues that

petitioners lack standing to challenge

the Pesticide Element. Specifically,

EPA argues that petitioners' injuries

were not caused by EPA's 2009

rulemaking and cannot be redressed by

the relief they seek. We disagree.

Petitioners bear the burden of

demonstrating a causal connection

between their injuries and EPA's

conduct. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560, 112 S.

Ct. 2130, 119 L. Ed. 2d 351 (1992).

EPA argues that because its 2009

action approving PEST-1 merely

maintained the status quo with respect

to the Pesticide Element, either

approval or disapproval would have

resulted in the same regulatory

outcome: continuation of the existing

Pesticide Element as approved by EPA

in 1997. EPA's argument assumes

incorrectly that approving PEST-1 does

not require an evaluation of the

existing Pesticide Element as part of

the SIP as a whole. As we determined

above, when EPA approves a plan

revision, it must ensure that the

whole plan, as revised, satisfies the

Act's requirements. Hall, 273 F.3d at

1159. This responsibility is even more

important where, as here, the revision

simply reiterates the commitments of

the prior plan.

EPA also claims it had a "false

choice" because its approval of PEST-1

did not make the Pesticide Element any

more or less enforceable. This

contention is not entirely true.

Although EPA approved an identical

plan in the 1997/1999 SIP, it wasn't

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74 ERC (BNA) 1264
until our 2008 Warmerdam decision that

EPA approved the plan with the

knowledge that the plan may not

include enforceable commitments. As

first submitted in 1994, EPA worried

the Pesticide Element did not meet the

requirements of the Act, primarily

because it failed to include specific

dates for adoption and implementation

of the regulations necessary to

achieve the required reductions. See

Warmerdam, 539 F.3d at 1067. EPA did

not propose approval of the Pesticide

Element until California submitted the

Wells Memorandum, which committed to

adopting any necessary regulations by

specific years and in specific areas.

Id. In proposing approval of the

Pesticide Element, EPA responded to

questions about the Pesticide

Element's enforceability by citing to

the Wells Memorandum, thereby

indicating its belief that the Wells

Memorandum provided the required

enforceable commitments. See, e.g., 62

Fed. Reg. 1150, 1169-70 (Jan. 8, 1997)

(to be codified at 40 C.F.R. pt. 52).

After Warmerdam, EPA affirmatively

knew that the Wells Memorandum was not

part of the 1997/1999 SIP, and

therefore its approval of PEST-1 (and

by incorporation the existing

Pesticide Element) in light of this

knowledge represents the causal link

giving rise to petitioners' injuries.

EPA further argues petitioners

cannot demonstrate redressability

because if it disapproves PEST-1 on

remand, the existing Pesticide Element

as approved in 1997 would remain in

effect. As we determined above,

however, any disapproval of a SIP

revision triggers the FIP unless EPA

determines the existing Pesticide

Element has sufficiently enforceable

commitments to meet the Act's

requirements. See 42 U.S.C. §§

7410(c)(1); 7509. Therefore, a remand

is required to allow EPA to make that

determination.

IV

EPA's failure to require

transportation control measures was

arbitrary and [*679] capricious.

Petitioners contend EPA violated the

Act when it partially approved the

2003 SIP Revision without requiring

California to submit transportation

control measures to offset the

emissions resulting from an increase

in vehicle miles traveled. EPA argues

that because aggregate motor vehicle

emissions will decrease each year,

California did not need to adopt

control measures. The disagreement

centers on one sentence in the Act

requiring transportation control

measures "to offset any growth in

emissions from growth in vehicle miles

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

The relevant sentence states in full:

Within 2 years after

November 15, 1990, the State

shall submit a revision that

identifies and adopts

specific enforceable

transportation control

strategies and

transportation control

measures ["TCMs"] to offset

any growth in emissions from

growth in vehicle miles

traveled or numbers of

vehicle trips in such area

["VMT"] 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).

Id. § 7511a(d)(1)(A). Petitioners

argue that in determining whether to

impose TCMs, EPA should identify the

level of emissions emanating solely

from VMT in a prior year, and use that

as the baseline from which to measure

the change in emissions. EPA's current

approach, in contrast, is to use the

aggregate emissions from a prior year

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74 ERC (BNA) 1264
as the baseline against which to

measure the change in emissions.

Aggregate motor vehicle emissions

reflects the combination of numerous

variables unrelated to VMTs such as

vehicle turnover, tailpipe control

standards, and use of alternative

fuels. Because the parties agree that

VMTs will increase by around 30%, but

that aggregate motor vehicle emissions

will decrease, the question for the

court is whether "any growth in

emissions" can mean any growth in

aggregate motor vehicle emissions, or

is unambiguous in meaning any increase

in the level of emissions solely from

VMTs.

To interpret § 7511a(d)(1)(A), we

utilize Chevron's "familiar two-step

procedure." Nat'l Cable & Telecomms.

Ass'n v. Brand X Internet Servs., 545

U.S. 967, 986, 125 S. Ct. 2688, 162 L.

Ed. 2d 820 (2005); Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, 467

U.S. 837, 104 S. Ct. 2778, 81 L. Ed.

2d 694 (1984). To determine whether

the phrase "to offset any growth in

emissions from growth in [VMT]" is

ambiguous, we must determine "whether

Congress has directly spoken to the

precise question at issue." Chevron,

467 U.S. at 842. "If the intent of

Congress is clear, that is the end of

the matter; for the court, as well as

the agency, must give effect to the

unambiguously expressed meaning of

Congress." Id. at 842-43. At Chevron

step one, if, employing the

"traditional tools of statutory

construction," we determine that

Congress has directly and

unambiguously spoken to the precise

question at issue, then the

"unambiguously expressed intent of

Congress" controls. Id. at 843 & n.9.

In determining congressional intent,

we not only examine the precise

statutory section in question but also

analyze the provision in the context

of the governing statute as a whole,

presuming a congressional intent to

create a "symmetrical and coherent

regulatory scheme." FDA v. Brown &

Williamson Tobacco Corp., 529 U.S.

120, 131-33, 120 S. Ct. 1291, 146 L.

Ed. 2d 121 (2000).

We begin with the plain words of

the statute. The use of the word

"growth" in reference to both

"emissions" and "vehicle [*680] miles

traveled" suggests two baselines: one

pegged to changes in emissions and the

other pegged to changes in VMT. EPA

argues that petitioners'

interpretation reads the phrase

"growth in emissions" out of the

statute because the Act would then

only require a simplistic analysis of

whether VMT is increasing. Although

EPA is correct in stating that any

increase in VMT is very likely to

result in an increase in aggregate

emissions, we cannot ignore the

possibility that with advances in

clean car technology, one day VMT

could increase without a corresponding

increase in emissions. If that

happens, under the statute, EPA would

not need to impose TCMs even though

VMT increased. Therefore, although

some increase in emissions is required

(such that there are two baselines),

it doesn't change the ultimate

question of whether the baseline for

the increase in emissions can be

viewed in terms of aggregate vehicle

emissions (as EPA contends), or if the

baseline must be viewed as any

increase in emissions due solely to

VMT.

EPA's interpretation only gives

effect to the second clause of the

relevant sentence, and not to the

first. According to the statute,

states shall implement TCMs not only

"to offset any growth in emissions

from growth in [VMT]" but also "to

attain reduction in motor vehicle

emissions as necessary . . . to comply

with the. . . periodic emissions

reduction requirements[ ]." 42 U.S.C.

§ 7511a(d)(1)(A). While the second

clause contemplates using TCMs to

reduce aggregate emissions, the first

clause contemplates using TCMs to

reduce emissions from VMT. See United

States v. Wenner, 351 F.3d 969, 975

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74 ERC (BNA) 1264
(9th Cir. 2003) (utilizing principles

of statutory construction to determine

that general, catchall provisions

should not trump more specific

provisions). Looking at both clauses

not only demonstrates that EPA's

interpretation--equating "growth in

emissions" with "growth in aggregate

emissions"--is redundant, it shows

that Congress used the phrase "motor

vehicle emissions" when referring to

aggregate emissions, but simply

"emissions from growth in [VMT]" when

referring to only those emissions from

VMT.

We conclude that under the plain

text of § 7511a(d)(1)(A), "any growth

in emissions" refers to any increase

in the level of emissions emanating

solely from VMT in a prior year.

Although there is no ambiguity in this

provision that requires consulting

legislative history to reject the

EPA's contrary interpretation, we note

that the legislative history supports

our interpretation. The House

Committee Report, for example,

specifically states how "growth in

emissions" should be measured,

explaining: "The baseline for

determining whether there has been

growth in emissions due to increased

VMT is the level of vehicle emissions

that would occur if VMT held constant

in the area." H.R. REP. NO. 101-490,

pt. 1, at 242 (1990). This Report is

very persuasive because, "the

authoritative source for finding the

Legislature's intent lies in the

Committee Reports on the bill, which

'represen[t] the considered and

collective understanding of those

Congressmen involved in drafting and

studying proposed legislation.'"

Garcia v. United States, 469 U.S. 70,

76, 105 S. Ct. 479, 83 L. Ed. 2d 472

(1984) (quoting Zuber v. Allen, 396

U.S. 168, 186, 90 S. Ct. 314, 24 L.

Ed. 2d 345 (1969)). EPA even admits

that "it is true that the language of

[the House Committee Report] appears

to support the alternative

interpretation of the statutory

language," and that "the original

authors of the provision and [the

House Committee Report] may in fact

have intended this result." 57 Fed.

Reg. 13,498, 13,522 (April 16, 1992)

(to be codified at 40 C.F.R. pt. 52).

[*681] Further review of the

legislative history provides

additional support for our conclusion.

See, e.g., S. REP. NO. 101-228, at 44

(1989) ("Severe and extreme areas are

required to offset growth in vehicle

miles traveled by implementing the

transportation controls listed . . .

."); 136 Cong. Rec. 16,956 (1990)

(floor statement of Sen. Max Baucus,

sponsor of the legislation) ("It is

clear that the goals of this bill--a

healthy and safe air supply for every

American--will not be achieved without

implementing strategies that

effectively limit the growth in

vehicle use in the major urban centers

where pollution levels are the

worst."). Because the statutory

language, clearly supported by

legislative history, demonstrates that

Congress has spoken directly to the

question at issue, we do not owe

deference to EPA's interpretation,

Chevron, 467 U.S. at 842-43;

Wilderness Society v. U.S. Fish &

Wildlife Serv., 353 F.3d 1051, 1062

(9th Cir. 2003), and we grant the

petition for review.

V

In summary, EPA's approval of the

2003 SIP Revision was arbitrary and

capricious. EPA should have ordered

California to submit a revised

attainment plan for the South Coast

after it disapproved the 2003

Attainment Plan. EPA should have

required transportation control

measures. EPA is required to determine

whether the Pesticide Element has

sufficient enforcement mechanisms to

satisfy the requirements of the Act.

We grant the petition for review and

remand to the EPA for further

proceedings consistent with this

opinion.

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74 ERC (BNA) 1264
PETITION GRANTED.

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