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 

Petition for Review 

of a final action of the Environmental Protection Agency 

 

PETITIONERS’ JOINT OPENING BRIEF 

MARYBELLE N. NZEGWU DAVID PETTIT 

BRENT J. NEWELL MELISSA LIN PERRELLA 

Center On Race, Poverty ADRIANO MARTINEZ 

& The Environment Natural Resources Defense Council 

47 Kearny Street, Suite 804 1314 Second Street 

San Francisco, CA 94108 Santa Monica, CA 90401 

Telephone: (415) 346-4179 Telephone: (310) 434-2300 

Facsimile: (415) 346-8723 Facsimile: (310) 434-2399 

Counsel for Petitioners Association of Irritated Counsel for Petitioner National Resources 

Residents, El Comité Para El Bienestar De Defense Council 

Earlimart, and Community Children’s Advocates 

Against Pesticide Poisoning 

 

Dated: August 21, 2009 

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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Federal Rule of Appellate Procedure 26.1, Petitioners, 

Association of Irritated Residents, El Comité Para El Bienestar De Earlimart, and 

Community Children’s Advocates Against Pesticide Poisoning, and Natural 

Resources Defense Council state that they are nonprofit organizations that have no 

parent companies and are not traded for profit.

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STATEMENT OF RELATED CASES 

In El Comité para el Bienestar de Earlimart v. U.S. Environmental 

Protection Agency, No. 08-74340 (9th Cir.), Petitioners Association of Irritated 

Residents, El Comité para el Bienestar de Earlimart, and Community and 

Children’s Advocates Against Pesticide Poisoning challenge EPA’s approval of the 

1994 Ozone State Implementation Plan. On June 30, 2009, this Court denied 

Petitioners’ Motion to Consolidate No. 08-74340 with this Petition, but ordered 

that both petitions for review be calendared together for oral argument. 

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TABLE OF CONTENTS

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

ISSUES PRESENTED FOR REVIEW....................................................1 

STATEMENT OF CASE....................................................................2 

STATEMENT OF FACTS..................................................................3 

SUMMARY OF ARGUMENT............................................................19 

ARGUMENT.................................................................................21 

I. STANDARD OF REVIEW........................................................21 

II. PETITIONERS HAVE STANDING.............................................23 

A. Petitioners Have Suffered, and Will Continue to Suffer 

an Injury-In-Fact.............................................................25 

B. Petitioners Satisfy the Causation Test....................................29 

C. Claims Will be Redressed by the Relief Sought........................31 

III. THE EPA’S FAILURE TO REQUIRE A PLAN THAT MEETS 

ATTAINMENT OF THE 1-HOUR STANDARD VIOLATES THE 

ACT...................................................................................31 

A. EPA Violated its Duty to Ensure the 2003 South Coast 

Plan Demonstrates Attainment.............................................33 

B. EPA”s Failure to Require a New Attainment Demonstration 

is Arbitrary and Capricious in Light of Significant New 

Information that Rendered the Outdated 1997/1999 Plan 

Ineffective.....................................................................35 

 C. The 2003 South Coast Plan is Not Discretionary, and EPA 

Must Require an Updated Plan Because the Prior Plan is 

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Patently Out of Date.........................................................36 

IV. EPA’S RE-APPROVAL OF THE PESTICIDE ELELMENT’S 

DISCRETIONARY COMMITMENT TO ADOPT REGULATIONS 

VIOLATES THE ACT.............................................................39 

A. Commitments to Adopt Regulations Must be Enforceable............40 

B. The Pesticide Element’s Commitment to Adopt Regulations 

 is Unenforceable.............................................................42 

1. EPA has interpreted what is necessary to make the Pesticide 

Element enforceable. 

 a. 1994 Ozone SIP approval...................................42 

 b. 2008 Ventura SIP Revision.................................43 

 c. The 2003 State Strategy.....................................45

2. The Ninth Circuit Held in Warmerdam that the Pesticide 

Element’s Commitment to Adopt Regulation is 

Unenforceable........................................................45 

C. EPA’s Re-Approval of the Pesticide Element Violates 

the Act........................................................................46 

V. EPA UNLAWFULLY APPROVED CARB’S SIP REVISION 

IN VIOLATION OF CLEAN AIR ACT § 182(D)(1)(A), WHICH 

REQUIRES SEVERE NONATTAINMENT AREAS TO ADOPT 

ENFORCEABLE TRANSPORTATION CONTROL MEASURES......47 

VI. CONCLUSION AND RELIEF REQUESTED................................60 

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TABLE OF AUTHORITIES

FEDERAL CASES 

Abramowitz v. EPA, 

832 F.2d 1071 (9th Cir. 1987).............................................................25 

Almendarez-Torres v. U.S., 

523 U.S. 224 (1998).........................................................................23 

Arizona v. Thomas, 

294 F.2d 834 (9th Cir. 1987)...............................................................32 

Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm'n, 

366 F.3d 692 (9th Cir.2004)................................................................41 

Bernhardt v. County of Los Angeles, 

279 F.3d 862 (9th Cir. 2002)...............................................................29 

Biodiversity Legal Foundation v. Badgley, 

309 F.3d 1166 (9th Cir. 2002).........................................................29, 56 

Brown v. Gardner, 

513 U.S. 115 (1994)........................................................................52 

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

467 U.S. 837 (1984)...................................................................passim

City of Los Angeles v. Lyons, 

461 U.S. 95 (1983)..........................................................................28 

Colautti v. Franklin, 

439 U.S. 379 (1979)........................................................................54 

Conservation Law Found. Inc. v. Busey, 

79 F.3d 1250 (1st Cir. 1996)................................................................41 

Delaney v. EPA, 

898 F.2d 687 (9th Cir. 1990)..........................................................25, 32 

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Duncan v. Walker, 

533 U.S. 167 (2001)........................................................................54 

Ecological Rights Foundation v. Pacific Lumber Co., 

230 F.3d 1141 (9th Cir. 2000).........................................................27, 31 

El Comité para el Bienestar de Earlimart v. Helliker, 

416 F.Supp.2d 912 (E.D. Cal. 2006)......................................................16 

El Comité para el Bienestar de Earlimart v. Warmerdam

539 F.3d 1062.......................................................................16, 20, 45 

Eisinger v. Fed. Labor Relations Auth., 

218 F.3d 1097 (9th Cir.2000)..............................................................56 

Engine Mfrs. Ass’n v. EPA, 

88 F.3d 1075 (D.C. Cir. 1996).............................................................51 

Environmental Defense Fund, 

167 F.3d 641 (D.C. Cir. 1999)..............................................................37 

Friends of the Earth v. Laidlaw, 

528 U.S. 167 (2000).........................................................................26 

Gallarde v. INS, 

486 F.3d 1136 (9th Cir. 2007).............................................................52 

General Motors Corp. v. United States, 

496 U.S. 530 (1990)....................................................................42, 47 

Hall v EPA, 

273 F.3d 1146 (9th Cir. 2001)....................................................22, 25, 32

Hall v. Norton, 

266 F.3d 969 (9th Cir. 2001)...............................................................27 

Hernandez v. Ashcroft, 

354 F.3d 824 (9th Cir. 2003)...............................................................58 

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K-Mart Corp. v. Cartier Inc., 

486 U.S. 281 (1988)....................................................................22, 52 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)....................................................................25, 28 

Maislin Indus. v. Primary Steel, Inc., 

497 U.S. 116 (1999)....................................................................49, 59 

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29 (1983).....................................................................23, 35 

New York v. EPA, 

443 F.3d 880 (D.C. Cir. 2006).............................................................51 

NRDC v. EPA, 

507 F.2d 905 (9th Cir. 1974)...............................................................25 

Ober v. EPA, 

84 F.3d 304 (9th Cir. 1996)............................................................22, 25 

Ortiz v. Meissner, 

179 F.3d 718 (9th Cir. 1999)...............................................................22 

Padash v. INS, 

358 F.3d 1161 (9th Cir. 2004)....................................................23, 54, 58 

Quinlivan v. Sullivan, 

916 F.2d 524 (9th Cir. 1990)...............................................................58 

Rettig v. Pension Benefit Guar. Corp., 

744 F.2d 133 (D.C. Cir. 1984).............................................................23 

Safe Air for Everyone v. EPA, 

475 F.3d 1096 (9th Cir.2007)..........................................................22, 46 

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US v. SCRAP, 

412 U.S. 669 (1973)........................................................................28 

Sierra Club v. EPA, 

129 F.3d 137 (D.C. Cir. 1997).............................................................17 

Sierra Club v. Morton, 

405 U.S. 727 (1972)................................................................24, 27, 28 

South Coast Air Quality Management District v. EPA, 

472 F.3d 882 (D.C. Cir. 2006)..........................................................7, 47 

Swan v. Clinton, 

100 F.3d 973 (D.C. Cir. 1996).............................................................31 

Train v. NRDC, 

421 U.S. 60..................................................................................32 

Union Elec. Co. v. EPA, 

427 U.S. 246...................................................................................4 

U.S. v. LSL Biotechnologies, 

379 F.3d 672 (9th Cir. 2004)...............................................................54 

Valley Forge Christian Coil. v. Ams. United for Separation of Church & State,

Inc., 

454 U.S. 464 (1982).........................................................................24 

Vigil v. Leavitt, 

381 F.3d 826 (9th Cir. 2004)...............................................................21 

Warth v. Seldin, 

422 U.S. 490 (1975)........................................................................29 

Whitman v. American Trucking Associations, 

531 U.S. 457 (2001).........................................................................26 

Wilderness Society v. USFWS, 

353 F.3d 1051 (9th Cir. 2003).........................................................................22 

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FEDERAL STATUTES

United States Code:

5 U.S.C. § 702..............................................................................22 

5 U.S.C. § 706..........................................................................20, 22 

23 U.S.C. § 134........................................................................18, 38 

42 U.S.C. § 7401 ............................................................................4 

42 U.S.C. § 7407.............................................................................4 

42 U.S.C. § 7408..................................................................49, 55, 56 

42 U.S.C. § 7409........................................................................4, 26 

42 U.S.C. § 7410.........................................................................passim 

42 U.S.C. § 7501...........................................................................48 

42 U.S.C. § 7502..................................................................... passim

42 U.S.C. § 7506............................................................................37 

42 U.S.C. § 7511...........................................................................4, 6

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

42 U.S.C. § 7604........................................................................40, 41 

42 U.S.C. § 7607.....................................................................1, 21, 59 

49 U.S.C. § 5303........................................................................18, 38 

49 U.S.C. § 5304............................................................................38 

OTHER AUTHORITIES 

23 C.F.R. § 450.218.........................................................................38 

40 C.F.R. §§ 52.220............................................. ...........................14 

40 C.F.R. § 81.305........................................................................2, 13 

40 C.F.R. § 93.118............................................................................37 

44 Fed. Reg. 8220 (Feb. 9, 1979)...........................................................6 

58 Fed. Reg. 62188 (Nov. 24, 1993)......................................................17 

61 Fed. Reg. 10920 (March 18, 1996)......................... ...........................13 

62 Fed. Reg. 1150 (Jan. 8, 1997).................................................14, 41, 43 

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62 Fed. Reg. 38856 (Jul. 18, 1997).........................................................6 

69 Fed. Reg. 15325 (Mar. 25, 2004).................................................17, 38 

69 Fed. Reg. 23858 (Apr. 30, 2004)................................................6, 7, 8 

73 Fed. Reg. 41277 (July 18, 2008)........................................15, 41, 43, 44 

73 Fed. Reg. 21885 (Apr. 23, 2008).................................................15, 41 

73 Fed. Reg. 63409 (Oct. 24, 2008)......................................................26 

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STATEMENT OF JURISDICTION 

This is a petition for review of a final action of the United States 

Environmental Protection Agency (“EPA”) made under the Clean Air Act (“the 

Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 7607(b)(1), which 

provides that a petition for review of a final EPA action “which is locally or 

regionally applicable” may be filed “only in the United States Court of Appeals for 

the appropriate circuit.” A petitioner must file a petition for review within 60 days 

from the date the notice of the final action appeared in the Federal Register. Id. 

EPA published the final rule at issue in this petition in the Federal Register on 

March 10, 2009. Excerpts of Record (“ER”), at 001. The Association of Irritated 

Residents (“AIR”), El Comité Para El Bienestar De Earlimart, and Community and 

Children’s Advocates Against Pesticide Poisoning timely filed its petition for 

review on May 8, 2009. The Natural Resources Defense Council (“NRDC”) 

timely filed its petition for review on May 11, 2009. On June 29, 2009, this Court 

consolidated these separate petitions. 

ISSUES PRESENTED FOR REVIEW 

1. Whether EPA acted arbitrarily, capriciously and illegally by failing to 

require California to submit a plan that demonstrates attainment of the 1-

hour ozone standard after approving the updated emissions inventory and 

concurrently disapproving the attainment demonstration. 

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2. Whether EPA acted arbitrarily, capriciously and illegally when it reapproved the Pesticide Element’s discretionary commitment to adopt 

regulations. 

3. Whether EPA acted arbitrarily, capriciously and illegally by failing to 

require California to submit Transportation Control Measures when it was 

shown that vehicle miles traveled increased in the Los Angeles-South Coast 

Air Basin. 

STATEMENT OF CASE 

Congress passed the Clean Air Act thirty-eight years ago, yet residents in the 

Los Angeles—South Coast Air Basin (“South Coast”)1

 and many parts of 

California continue to breathe air that fails to meet federal health-based clean air 

standards for ozone. This petition seeks to vindicate Californian’s statutory right 

to safe and healthy air. The Clean Air Act (“Act”) requires states with areas that 

fail to meet clean air standards to develop plans that serve as a mandatory roadmap 

to achieve the standards. States must submit these plans to EPA for approval, and 

when approved, the plans become part of the State Implementation Plan (“SIP”or 

“clean air plan”) and binding upon the states as a matter of federal law. EPA had 

the chance to put California on a track to clean air when EPA considered whether 

 

1 South Coast includes the southwestern two-thirds of Los Angeles County, all of 

Orange County, western Riverside County, and Southwestern San Bernardino 

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

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to approve or disapprove parts of the ozone plans adopted by California in 2003. 

Instead, EPA chose to take actions that violate the Act in three ways:

1. EPA violated the Act when it did not require that California submit a new 

ozone plan even though the EPA found that the 2003 ozone plans would not 

achieve the federal ozone standard by the legal deadline of 2010; 

2. EPA violated the Act when it approved unenforceable measures, including a 

commitment to adopt regulations to control pesticide air pollution; and 

3. EPA violated the Act when it failed to require a Transportation Control 

Measure plan—i.e. a plan to reduce pollution from the transportation system 

such as creation of improved public transportation—despite an increase in 

vehicle miles traveled in the South Coast. 

The Act requires EPA to ensure that California’s clean air plans attain the 

health-based ozone standard, provide for attainment using enforceable measures, 

and require Transportation Control Measures when vehicle miles traveled increase. 

As a remedy, the Court should vacate EPA’s approval and remand the matter to 

EPA. 

STATEMENT OF FACTS 

Statutory Background 

Congress enacted the Act as “a drastic remedy to what was perceived as a 

serious and otherwise uncheckable problem of air pollution,” Union Elec. Co. v. 

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EPA, 427 U.S. 246, 256 (1976). Congress intended to protect and enhance the 

nation’s air quality in order to promote public health and welfare. 42 U.S.C. § 

7401(b). To achieve this objective, Congress imposes a carefully calibrated system 

where EPA promulgates national ambient air quality standards (“NAAQS” or 

“clean air standards”) for harmful air pollutants that are sufficient “to protect 

public health” with “an adequate margin of safety,” 42 U.S.C. § 7409, and directs 

the states to devise “clean air plans” for bringing polluted areas into compliance 

with these health-based standards. 42 U.S.C. § 7410. EPA designates areas as 

either “attainment” or “nonattainment” based on whether they meet the clean air 

standards for a particular pollutant. 42 U.S.C. § 7407(d). 

Areas that fail to meet clean air standards—nonattainment areas—receive 

different classifications based on the severity of an area’s pollution. EPA classifies 

areas with the lowest levels of ozone pollution as “Marginal” and classifies the 

worst areas as “Extreme.” 42 U.S.C. § 7511(a). Both the South Coast and the San 

Joaquin Valley are classified as “Extreme.”2

 The Act requires nonattainment areas 

to submit attainment plans that demonstrate the state will meet clean air standards 

 

2

 Both areas are classified as “Extreme” for the 1-hour ozone standard. On August 

18, 2009, the EPA Regional Administrator for Region IX signed a proposed rule to 

re-classify both of these regions as “Extreme” for the 8-hour ozone standard. EPA, 

Air Actions, California available at

http://www.epa.gov/region09/air/actions/ca.html. As of the filing of the brief, it 

has not been published in the Federal Register. 

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to EPA for approval, showing in detail when and how federal standards will be 

met. 42 U.S.C. §§ 7410(a), 7511a. 

Attainment plans have two main components: (1) the attainment 

demonstration, for which Congress mandated that, using predictive computer 

modeling, the plan must demonstrate that the area will meet the NAAQS by the 

statutory deadline, 42 U.S.C. § 7511a(c)(2)(a), (d), (e); and (2) the state's control 

enforceable strategy to achieve emissions reductions necessary to attain the clean 

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

Ozone Pollution and Its Health Impacts 

Ozone—commonly referred to as smog—forms in the presence of heat and 

sunlight through a chemical reaction among two families of chemicals: volatile 

organic compounds (“VOC”) and nitrogen oxides (“NOx”). As EPA has 

articulated “[o]zone causes serious health problems by damaging lung tissue and 

sensitizing the lungs to other irritants. When inhaled, even at very low levels, 

ozone can cause acute respiratory problems; aggravate asthma; cause temporary 

decreases in lung capacity of 15 to 20 percent in healthy adults, cause 

inflammation of lung tissue, lead to hospital admissions and emergency room 

visits; and impair the body’s immune system defenses, making people more 

susceptible to respiratory illnesses, including bronchitis and pneumonia.” ER, at 

009. EPA has further noted that “[c]hildren are most at risk from exposure to 

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ozone because they breathe more air per pound of body weight than adults; their 

respiratory systems are still developing and thus more susceptible to environmental 

threats; and children exercise outdoors more than adults in the high-ozone months 

of summer.” Id. 

In 1979, under section 109 of the Act, EPA established a primary, healthbased clean air standard for ozone: 0.12 parts per million (“ppm”) averaged over a 

1-hour period (“1-hour ozone standard”). See 44 Fed. Reg. 8220 (Feb. 9, 1979). 

When Congress amended the Act in 1990, it gave regions varying amounts of time 

to meet the 1-hour standard, depending on a region’s pollution severity. 

“Extreme” areas—like the South Coast and the San Joaquin Valley—received 20 

years to meet the standard and must do so by 2010. 42 U.S.C. § 7511(a). 

In 1997, and after an extensive scientific review, EPA found that public 

health required a standard more stringent than the 1-hour standard. 62 Fed. Reg. 

38856 (Jul. 18, 1997). Accordingly, EPA promulgated an additional ozone 

standard of 0.08 ppm averaged over an 8-hour period (“8-hour standard”). Id. 

On April 30, 2004, EPA designated areas throughout the nation as 

“attainment” or “nonattainment” of the 8-hour standard. 69 Fed. Reg. 23858 (Apr. 

30, 2004). EPA included the South Coast, the San Joaquin Valley, and several 

other parts of California as areas violating this more health protective 8-hour 

standard. Id. at 23884. Currently, the South Coast and the San Joaquin Valley 

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have until 2020 and 2013 respectively to meet the new 8-hour standard, but both 

have requested that they be given until 2024. Id. 

Also on April 30, 2004, EPA promulgated an ozone implementation rule. 69 

Fed. Reg. 23951 (Apr. 30, 2004). Among other things, EPA revoked the 1-hour 

standard. Id. at 23996. Because the 8-hour standard’s designations for almost all 

areas of the nation were effective June 15, 2004, this meant that EPA effectively 

abolished the 1-hour standard in those areas after June 15, 2005. As of June 15, 

2005, only the South Coast and San Joaquin Valley were classified as “Extreme” 

for the 1-hour standard (i.e. areas with the worst ozone pollution) in the country. 

EPA, Green Book, available at http://epa.gov/air/oaqps/greenbk/onc.html (listing 

area designations under the 1-hour standard as of June 15, 2005). 

Several states, industry associations, environmental organizations and other 

government agencies challenged the 8-hour standard implementing rule in South 

Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006). 

The D.C. Circuit held that EPA could revoke the 1-hour standard, but that 1-hour 

standard controls must remain in place to prevent backsliding. Id. at 899. Thus, 

States must comply with the provisions to meet the 1-hour standard in order to 

attain the 8-hour standard. 

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California’s Air Pollution Problems 

California has the most intractable ozone problem in the nation. Despite 

significant work to control ozone concentrations over the years, several places in 

the State continue to violate ozone standards. 69 Fed. Reg. 23881 (Apr. 30, 2004). 

In 2003, the California Air Resources Board (“CARB”) estimated that “attaining 

the State’s own health-based air quality standards for particulate matter and ozone 

would annually prevent: 

• 6,500 premature deaths, 

• 10,000 hospital admissions, 

• 350,000 asthma attacks, and 

• 2.8 million lost work days.” 

ER, at 239-40.3

 Emblematic of the chronic failure to meet the standard is the 

South Coast, which continues to have the highest ozone concentrations in the 

nation. ER, at 009. To cure these impacts from high ozone levels, the State in 

conjunction with the South Coast Air Quality Management District (“SCAQMD” 

or the “District”) sought to reduce ozone and other pollution. The latest EPAapproved plan for ozone in the South Coast is the 1997 Ozone Plan as amended by 

the 1999 Ozone Plan (“1997/1999 Plan”). ER, at 010. 

 The American Lung Association ranks the San Joaquin Valley counties of 

Kern, Tulare, and Fresno as the second, fourth, and seventh most ozone-polluted 

 

3

 California’s state air quality standards are generally more stringent than the 

federal standards. 

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counties in the United States, respectively. ER, at 022. The South Coast continues 

to have the highest ozone concentrations in the nation. ER, at 009. 

Economists Jane V. Hall, Ph.D., and Victor Brajer, Ph.D., published a 

comprehensive analysis of the effects from not meeting the 8-hour standard and the 

most recent clean air standard for fine particulate matter (PM2.5). For example, 

the health effects of not meeting these standards, and their concomitant economic 

values, inflict a conservative measurable cost of $5.7 billion each year –$1,600 per 

person – in the San Joaquin Valley. ER, at 023. While these data are not directly 

related to the failure to meet the 1-hour ozone standard, attaining the 1-hour 

standard reflects progress towards attaining the 8-hour standard and the 2008 

PM2.5 standard (NOx and VOC emission reductions are also needed to meet 

PM2.5 standards). Thus, a meaningful plan to attain the 1-hour standard by the 

2010 deadline also means progress towards solving the health and economic 

consequences of the air quality crisis in the South Coast and the San Joaquin 

Valley. 

The 2003 Ozone Plans at Issue Here 

On October 23, 2003, CARB approved the 2003 State Strategy, a statewide 

strategy for attaining the 1-hour standard, and the South Coast specific plan to 

meet that standard (“2003 South Coast Plan”). ER, at 010-11. 

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 The attainment plan for each region of California consists of two elements: 

1) the State Strategy adopted by CARB and 2) the regional specific plan adopted 

by the local air district (e.g. the 2003 South Coast Plan). CARB develops the State 

Strategy to control pollution on a statewide basis, so the measures apply to the 

entire state. Air districts, such as the SCAQMD, are charged with developing, 

subject to CARB approval, region-specific plans. The two pieces form a 

comprehensive strategy for nonattainment areas. 

CARB adopted the 2003 State Strategy in an effort to attain the 1-hour 

standard in the South Coast and the San Joaquin Valley. ER, at 010. The 2003 

Plan improved both of the critical elements of the attainment plan—the modeled 

attainment demonstration and the control measures needed to attain the 1-hour 

standard by 2010. 

First, the 2003 Plan updated the modeling. CARB noted that new 

information demonstrated “the need for much greater emission reductions than the 

[1997/1999 Plan].” ER, at 119. Of particular significance, car and truck pollution 

estimates in the outdated 1997/1999 Plan were much lower than the 2003 State 

Strategy’s estimates. The 2003 South Coast Plan set forth this underestimation by 

as much as 20 percent. 

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Summary Chart From 2003 South Coast Plan 

 NOx Emissions From OnRoad Motor Vehicles 

(tons/day) 

VOC Emissions From 

On-Road Motor Vehicles 

(tons/day) 

1997 Plan 606 443 

2003 Plan 761 519 

 ~ 20% increase ~15% increase 

ER, at 156, 158. Since the District estimated that motor vehicles account for 88% 

of NOx and 53% of total VOC emissions in the South Coast, this was a significant 

departure from what was required to show attainment in the 1997/1999 Plan. ER, 

at 166. 

Second, based on the new air quality modeling that showed an increase in 

emissions of ozone precursors, CARB and the District needed to add additional 

measures to attain the 1-hour standard. The District provided the following 

rationale for the needed amendment to the plan: 

[The 1997/1999 Plan was] based on demographic forecasts of the mid1990’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. 

ER, at 113. Accordingly, CARB committed to several additional measures to 

control ozone pollution in the 2003 State Strategy. 

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The Pesticide Element of the 2003 State Strategy 

The 2003 State Strategy commits to a strategy to “Implement Existing 

Pesticide Strategy.” ER, at 286. As included in the 2003 State Strategy, the 

Pesticide Strategy does not include a final action date. EPA’s approval of the 2003 

State Strategy “maintain[s] 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).” ER, at 001, 006, 286. 

The 1994 Ozone SIP. 

ARB adopted the existing pesticide strategy as the “Pesticide Element” of 

the 1994 Ozone State Implementation Plan (“1994 Ozone SIP”). In the Pesticide 

Element, ARB committed to reduce VOC emissions from agricultural and 

structural pesticides in the South Coast, Sacramento, San Joaquin Valley, Ventura, 

and Southeast Desert ozone nonattainment areas by 20% from 1990 levels by 

2005. ER, at 057. California submitted the Pesticide Element to EPA as part of 

the 1994 Ozone SIP. As originally submitted, the Pesticide Element did not 

contain clear enforceable commitments, so EPA requested a more definitive 

promise “to support SIP approvability.” ER, at 047-48, 049-50, 051-52. 

 On May 9, 1995, Department of Pesticide Regulation (“DPR”) Director 

James Wells complied, and wrote a memorandum to CARB Executive Officer 

James Boyd (the “Wells Memorandum”) (ER, at 053-54). 

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The Wells Memorandum states: 

The Department of Pesticide Regulation commits to adopt and submit to 

U.S. EPA by June 15, 1997, any regulations necessary to reduce volatile 

organic compound emissions from agricultural and commercial structural 

pesticides by specific percentages of the 1990 base year emissions, by 

specific years, and in specific nonattainment areas (described in 40 C.F.R. 

81.305), as listed in the following table: 

Reductions from 1990 Baseline

Ozone Nonattainment Area 1996 1999 2002 2005

Sacramento Metro 8% 12% 16% 20% 

San Joaquin Valley 8% 12% 16% 20% 

South Coast 8% 12% 16% 20% 

Southeast Desert 8% 12% 16% 20% 

Ventura 8% 12% 16% 20% 

ER, at 053-54. CARB submitted the Wells Memorandum to EPA, calling the 

memorandum “a clarification” of what was “in the SIP.” ER, at 053-54. 

 With this enforceable promise in hand, EPA proposed approval of the 1994 

Ozone SIP. 61 Fed. Reg. 10920 (March 18, 1996) (“Proposed Rule”). EPA 

described the Wells Memorandum as a “clarification” of the “technical details of 

the pesticide commitment.” Id. at 10935. EPA stated that the “clarification is 

considered part of the SIP.” Id. EPA referenced the Wells Memorandum and the 

CARB letter in a footnote. Id. 

On June 13, 1996, CARB sent another letter to EPA Region IX Air Division 

Director David Howekamp (the “Howekamp Letter”) asking for various 

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corrections to the Proposed Rule. ER, at 055-57. The Howekamp Letter requested 

that EPA delete the table “Reductions from 1990 Pesticide Emissions Baselines,” 

stated that the pesticide “commitment is for a 20% reduction from 1990 levels by 

2005 in each SIP area, except [San Diego].” ER, at 057 (emphasis added). 

 In 1997, EPA approved the Pesticide Element and the Howekamp Letter as 

part of the State Implementation Plan. 62 Fed. Reg. 1150, 1186-1187 (Jan. 8, 

1997); 40 C.F.R. §§ 52.220(c)(204)(i)(A)(6), 52.220(c)(236)(i)(A)(1). In the final 

rulemaking, EPA affirmed that it was approving a non-discretionary commitment 

to adopt regulations in the Pesticide Element. 62 Fed. Reg. at 1155, 1169-1170. 

EPA responded to a comment from the Environmental Defense Center that 

questioned whether the “pesticide measure should be granted credit” because the 

proposed rule referred to a June 1997 deadline to adopt regulations while “the SIP 

itself recites a possible, not obligatory, 1998 date.” Id. at 1169. EPA responded to 

the comment by referring to the Wells Memorandum and stated that DPR’s 

commitment to adopt regulations by June 15, 1997 deadline was an enforceable 

element of the SIP. Id. at 1170. 

Six years later, CARB adopted the 2003 State Strategy, which includes a 

strategy called PEST-1 to “Implement Existing Pesticide Strategy” called PEST-1: 

As described in the 1994 SIP and U.S. EPA’s notice approving that plan, 

DPR committed to reduce VOC emission from pesticides through voluntary 

measures with a regulatory backstop. Specifically, DPR committed to adopt 

and submit to U.S. EPA by June 15, 1997, any regulations necessary to 

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reduce VOC emission from agricultural and commercial structural pesticides 

by specific percentages of the 1990 base year emissions, by specific years, 

and in specific nonattainment areas. For the South Coast, the commitment is 

to reduce VOC emissions from pesticides to a level 20 percent below 1990 

base year emissions by the attainment year. 

ER, at 256. 

In 2008, EPA approved a revision to the Pesticide Strategy for the Ventura 

nonattainment area only, in which EPA interpreted the Pesticide Commitment. See

73 Fed. Reg. 21885, 21886 (Apr. 23, 2008); 73 Fed. Reg. 41277, 41281 (Jul. 18, 

2008). EPA stated that the pesticide commitment is to adopt any rules necessary 

by June 15, 1997 to achieve a percentage reduction in 2005 and a tonnage 

reduction in the attainment year. 73 Fed. Reg. at 41281 (“our interpretation of the 

original Pesticide Element commitment as having both a tonnage reduction 

commitment in addition to the percent reduction commitment”). EPA then 

describes the commitment as including the June 15, 1997 date to adopt “any 

regulations necessary.” Id.

Under the original Pesticide Element, for the Ventura County 

nonattainment area (Ventura), the California Department of Pesticide 

Regulation (DPR) committed to adopt and submit to EPA by June 15, 

1997, any regulations necessary to reduce VOC emissions from 

agricultural and structural pesticides by 20 percent of the 1990 base 

year emissions by 2005. 

Id. at 41277. 

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El Comité para el Bienestar de Earlimart v. Warmerdam

Several of the Petitioners here successfully enforced the Wells 

Memorandum in U.S. District Court. See El Comité para el Bienestar de 

Earlimart v. Helliker, 416 F.Supp.2d 912 (E.D. Cal. 2006). On August 20, 2008, 

shortly after EPA approved the Ventura revision, this Court interpreted the 

Pesticide Element and held that the commitment to adopt regulations by June 15, 

1997 in the Wells Memorandum was discretionary. This Court held that the 

California SIP does not include the “Wells Memorandum.” El Comité para el 

Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1069-1072. The Ninth 

Circuit stated: 

Because we conclude that the schedule and interim standards of the Wells 

Memorandum are not part of the SIP, California would not have been in 

violation of the SIP even if it had made no decision about the need for 

further regulations. 

Id. at 1069. Under Warmerdam, there is no enforceable commitment to adopt 

regulations in the Pesticide Element of the 1994 Ozone SIP. 

EPA Action on the 2003 Ozone Plans 

On January 9, 2004, the CARB submitted the 2003 State Strategy and the 

2003 South Coast Plan to EPA. On March 25, 2004, the Federal Register 

published EPA’s Notice of Adequacy of the Motor Vehicle Emission Budgets 

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(“MVEBs”)4 for the South Coast based partially on its assessment “that the [2003 

South Coast SIP] provide[s] for attainment or maintenance (as appropriate) of the 

relevant ambient air quality standard.” 69 Fed. Reg. 15325 (Mar. 25, 2004). This 

means that EPA determined that with all the commitments the various agencies 

made in the plan, the South Coast would reduce pollution enough to meet the 1-

hour standard. Accordingly, EPA “preliminarily determined that the [2003 South 

Coast Plan] submittal provides for progress and attainment of the 1-hour ozone, 

PM10, and CO NAAQS, and maintenance of the nitrogen dioxide (“NO2”) 

NAAQS, and that the budgets associated with the plans are consistent with the plan 

and, therefore, can be found adequate.” Id. (emphasis added). Under the Act, 

federal funds for transportation projects are conditioned on an adequate 

demonstration that those projects will not frustrate attainment. Sierra Club v. EPA, 

129 F.3d 137, 140 (D.C. Cir. 1997). Thus, transportation projects that could have 

resulted in increased emissions in the South Coast were allowed to proceed 

pursuant to these 1-hour ozone MVEBs that EPA determined were adequate. 

 On October 24, 2008, and almost five years after CARB submitted the 2003 

State Strategy and the 2003 South Coast Plan to EPA, EPA finally issued a 

 

4

 “Motor vehicle emissions budgets are the...motor vehicle-related portions of the 

projected emission inventory used to demonstrate...attainment...for a particular 

year specified in the SIP. The motor vehicle emissions budget establishes a cap on 

emissions which cannot be exceeded by predicted highway and transit vehicle 

emissions.” 58 Fed. Reg. 62188, 62194 (Nov. 24, 1993). 

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proposed rule in the Federal Register on October 24, 2008. ER, at 008. However, 

the plans that were submitted in 2004 were dramatically different by the time EPA 

issued its proposed rule in 2008. Throughout 2008, CARB, the District, and the 

Southern California Association of Governments (“SCAG”)5

 deleted a myriad of 

commitments in the plan, including commitments to reduce pollution from trucks, 

consumer products, and the transportation system. As an example, CARB 

requested that transportation measures aimed at reducing ozone pollution be 

removed from the plan. ER, at 296-97 Also, Elaine Chang, Deputy Executive 

Officer at the District filed a letter with EPA providing data showing that motor 

vehicle emissions in the South Coast were declining. ER, at 294-95. The purpose 

of this letter was to show EPA that the region did not need to adopt Transportation 

Control Measures pursuant to section 182(d)(1)(A) of the Act. 42 U.S.C. § 

7511a(d)(1)(A). Effectively, CARB, SCAQMD, and SCAG removed the lion’s 

share of pollution reduction measures in the 2003 plans. Because the 2003 South 

Coast Plan’s computer modeling demonstrated a need for more commitments than 

the outdated 1997/1999 Plan and the regulators gutted the emission reductions, the 

 

5 The transportation plan and Transportation Improvement Program for a 

metropolitan area is developed by a regional transportation planning agency 

established under federal law known as the metropolitan planning organization 

(“MPO”). 23 U.S.C. § 134(b), 49 U.S.C. § 5303(c). In the South Coast 

nonattainment area the MPO is SCAG.

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plans could no longer meet the 1-hour standard. Accordingly, EPA disapproved 

the attainment demonstration. ER, at 006. 

Petitioners raised the following comments on deficiencies in the 2008 

proposed rule— 

1) EPA’s proposal was unlawful because it failed to require that 

CARB and SCAQMD develop a plan to demonstrate attainment of 

the 1-hour standard. 

2) The EPA cannot approve unenforceable commitments to adopt 

regulations into the SIP. 

3) EPA improperly failed to require Transportation Control Measures 

pursuant to section 182 of the Act and it is not excused from doing 

so based on the Chang letter. 42 U.S.C. § 7511a. 

EPA rejected Petitioners’ objections, and on March 10, 2009, EPA published 

its final rule in the federal register that closely mirrored the October 24, 2008 

proposed rule. ER, at 001. 

SUMMARY OF ARGUMENT 

EPA’s final rule approving in part and disapproving in part the 2003 State 

Strategy and 2003 South Coast Plan is contrary to the Act and is arbitrary and 

capricious under the Administrative Procedure Act (“APA”). Several critical 

violations of the Act interfere with the attainment of the 1-hour standard. 

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Specifically, EPA violates several provisions of the Act that require clean air plans 

to attain relevant standards, 42 U.S.C. §§ 7410(a)(2)(A), 7511a(c)(2)(A), include 

enforceable measures, 42 U.S.C. §§ 7410(a)(2)(A), 7502(c)(6), and include 

Transportation Control Measures when vehicle miles traveled increase in a region, 

42 U.S.C. § 7511a(a)(2)(d)(1)(A). The final rule is also arbitrary and capricious 

agency action. 5 U.S.C. § 706(2)(A). 

 First, EPA’s disapproval of the attainment demonstration for the 2003 South 

Coast Plan without requiring CARB and the District to submit a revised plan that 

will attain the 1-hour standard violates the Act and the APA. Attainment of federal 

clean air standards is a paramount goal of the Act. Here, EPA found that the 2003 

plans would fail to attain the health-based 1-hour standard. Despite this finding, 

EPA failed to mandate submission of a plan that would get the job done. 

 Second, EPA’s approval of an unenforceable commitment to adopt 

regulations to control pesticide air pollution violates the Act and the APA. The 

Act requires that attainment plans include enforceable measures. 42 U.S.C. §§ 

7410(a)(2)(A), 7502(c)(6). This Court held that the Wells Memorandum was not a 

part of the State Implementation Plan. Warmerdam, 539 F.3d at 1069-72. As a 

result of that decision, EPA approved a pesticide strategy whereby the decision to 

adopt regulations is discretionary, and in direct conflict with the Act. 

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 Third, EPA violated the Act when it failed to require that the 2003 South 

Coast Plan include Transportation Control Measures, which are enforceable 

measures to reduce pollution from the South Coast’s transportation system. 42 

U.S.C. § 7511a(d)(1)(A). The plain language and legislative history of the Act, as 

well as the deliberate structure of the Act, demonstrate that Transportation Control 

Measures are required when vehicle miles traveled increase in a region. EPA 

diverges from the strict text of the statute and the legislative history and advances 

an approach that renders this provision of the Act superfluous. Because EPA’s 

interpretation frustrates Congress’s intent as manifested through the plain language 

of the statute, EPA’s decision to not require Transportation Control Measures must 

be vacated. 

Accordingly, Petitioners request that the Court vacate EPA’s action on the 

2003 plans and remand the matter to EPA. 

ARGUMENT 

I. STANDARD OF REVIEW 

This Court has jurisdiction to review EPA’s approval of a SIP pursuant to 

section 307(b)(1) of the Act. 42 U.S.C. § 7607(b)(1); see also Vigil v. Leavitt, 381 

F.3d 826, 833 (9th Cir. 2004). This section does not specify a standard of review, 

therefore the Court “appl[ies] the general standard of review for agency actions in 

the Administrative Procedure Act” and determines “whether EPA’s actions were 

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‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law.’” Id. (quoting 5 U.S.C. § 706(2)(A)). 

EPA’s action approving all or part of a SIP under the Act must be vacated 

and remanded when the approval is arbitrary, capricious, or otherwise not in 

accordance with law. 5 U.S.C. § 702. Ober v. EPA, 84 F.3d 304, 307 (9th Cir. 

1996); Hall v EPA, 273 F.3d 1146, 1155 (9th Cir. 2001); Safe Air For Everyone v. 

EPA, 475 F.3d 1096, 1103 (9th Cir. 2007). 

In evaluating Petitioner’s claim that EPA’s final rule warrants remand, the 

Court should follow the familiar Chevron standard, Chevron U.S.A., Inc. v. NRDC, 

467 U.S. 837, 842-43 (1984). Under Chevron step one, the Court must “give[] 

effect” to congressional intent discerned using “traditional tools of statutory 

construction.” Id. at 843 n.9. When “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 intent of Congress.” Id. at 842-43. Where “the aim of 

Congress ... is clear,” the Court “do[es] not owe deference” to the agency. 

Wilderness Society v. USFWS, 353 F.3d 1051, 1062 (9th Cir. 2003) (citing 

Chevron, 467 U.S. at 842-43); see also Ortiz v. Meissner, 179 F.3d 718, 723 (9th 

Cir. 1999) (same). “In ascertaining the plain meaning of the statute, the court must 

look to the particular statutory language at issue, as well as the language and 

design of the statute as a whole.” K-Mart Corp. v. Cartier Inc., 486 U.S. 281, 291 

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(1988). “[T]he statute’s language, structure, subject matter, context, and history” 

are the “factors that typically help courts determine a statute’s objective and 

thereby illuminate its text.” Padash, 358 F.3d at 1170 (quoting Almendarez-Torres 

v. U.S., 523 U.S. 224, 228 (1998)). 

Where Congress has failed to make its intent clear, Chevron step two 

provides for judicial deference only to reasonable agency interpretations of the 

statute. Chevron, 467 U.S. at 845; Rettig v. Pension Benefit Guar. Corp., 744 F.2d 

133, 151 (D.C. Cir. 1984). Unless otherwise expressly indicated, references in this 

brief to “unlawful” agency action address both violation of Congressional intent 

under Chevron step one and unreasonable agency interpretation under step two. 

 Agency action is arbitrary and capricious if, inter alia, “the agency has 

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

consider an important aspect of the problem, [or] offered an explanation for its 

decision that runs counter to the evidence before the agency.” Motor Vehicle Mfrs. 

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

An agency “must cogently explain why it has exercised its discretion in a given 

manner” or its actions will be deemed arbitrary. Id. at 48. 

II. PETITIONERS HAVE STANDING. 

Petitioners’ members currently reside, work, recreate and/or travel in the 

South Coast, which has been designated as nonattainment for the pollutant ozone. 

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See Declarations filed herewith [Addendum (“AD), at 102-126]. Moreover, 

Petitioners also have members injured by EPA’s failure to disapprove an 

unenforceable commitment to adopt regulations to control pesticide air pollution in 

five regions of California. On behalf of these members, Petitioner organizations 

have standing to challenge EPA’s final rule because their members are harmed by 

current levels of pollution, and will continue to be harmed by hazardous pollution 

levels because EPA’s final rule unlawfully fails to require an attainment plan for 

the 1-hour standard, Transportation Control Measures, and approves an 

unenforceable commitments. 

The current and future harm to health suffered by Petitioners’ members 

meets all the recognized tests for standing. This Court has construed the standing 

requirement to ensure that parties seeking resolution of a dispute have a stake in 

the outcome. 

The standing inquiry focuses upon “whether a party has a sufficient stake in 

an otherwise justiciable controversy to obtain judicial resolution of that 

controversy” Sierra Club v. Morton, 405 U.S. 727, 731 (1972), and serves to 

ensure that “legal questions presented to the court will be resolved...in a 

concrete factual context conducive to a realistic appreciation of the 

consequences of judicial action.” Valley Forge Christian Coil. v. Ams. 

United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). 

Hall v. Norton, 266 F.3d 969, 975 (9th Cir. 2001). 

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A. Petitioners Have Suffered, And Will Continue To Suffer An 

Injury-In-Fact. 

The first test for determining Petitioners’ stake is that “the [party] must have 

suffered an ‘injury in fact’-an invasion of a legally-protected interest which is (a) 

concrete and particularized...and (b) “actual or imminent, not ‘conjectural’ or 

‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). This 

Court’s expansive case law supports the conclusion that the evidence of exposures 

exceeding the ozone NAAQS by Petitioners demonstrates that their members 

suffer “concrete,” “particularized” and “imminent” injuries from air pollution that 

violates clean air standards. The Act creates the legally protected interest in 

having air pollution concentrations reduced to comply with clean air standards. 

Petitioners seeking review of EPA’s unlawful approval of deficient SIPs 

have standing because they “will suffer injury if compelled to breathe air less pure 

than that mandated by the Clean Air Act.” NRDC v. EPA, 507 F.2d 905, 910 (9th 

Cir. 1974) (citations omitted). This holding has served as the unchallenged 

predicate for standing in numerous suits challenging EPA's unlawful approvals of 

deficient SIPs. Ober v. EPA, 84 F.3d 304, 307 (9th Cir. 1996); Hall v. EPA, 273 

F.3d 1146, 1155 (9th Cir. 2001); Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 

1987); Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990), cert.denied, 111 S.Ct. 556 

(1990). 

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Petitioners’ factual predicate for injury here is identical since Petitioners’ 

members are “compelled to breathe” levels of ozone that exceed the 1-hour and 8-

hour standards promulgated to protect “public health.”6

 Petitioners’ members aver 

that when they breathe the air on high pollution days it causes them various 

concrete and tangible forms of physical injury and discomfort, ranging from 

asthma attacks to general difficulty breathing and lung spasms. See Declarations of 

Elpe Villard, Lindon Schultz, Keith J. Gordon, Mary Duprey, Tom Frantz, Mary 

Haffner, and Teresa DeAnda (collectively “Petitioners’ Members”) filed herewith.

Petitioners’ members curtail physical exercise and outdoor activities due to high 

pollution concentrations, lessening their quality of life and impairing recreational 

opportunities. Petitioners’ members are concerned by the smog they and their 

families see and are physically harmed by on a regular basis. See Declarations of 

Petitioners’ Members filed herewith.

This Court's application of the Supreme Court's environmental standing 

decision in Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000), found standing if 

an area would remain environmentally degraded. “Under Laidlaw, then, an 

individual can establish ‘injury in fact’ by showing a connection to the area of 

 

6

 Clean Air Standards are set at levels “requisite to protect the public health.” 42 

U.S.C. §7409(b)(l); Whitman v. American Trucking Associations, 531 U.S. 457, 

465 (2001). In 1997, EPA promulgated a new standard for ozone. 62 Fed. Reg. 

38856 (Jul. 18, 1997). The ozone NAAQS is exceeded at all reference monitors in 

the South Coast. 73 Fed. Reg. 63409 (Oct. 24, 2008). 

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concern sufficient to make credible the contention that the person’s future life will 

be less enjoyable—that he or she really has or will suffer in his or her degree of 

aesthetic or recreational satisfaction—if the area in question remains or becomes 

environmentally degraded.” Ecological Rights Foundation v. Pacific Lumber Co., 

230 F.3d 1141, 1149 (9th Cir. 2000) (emphasis added); see also Sierra Club v. 

Morton, 405 U.S. 727, 734-736 (1972). In the present situation, EPA disapproved 

the attainment demonstration for the South Coast, which means that based on the 

reductions in pollution needed to attain the 1-hour ozone standard, the region will 

not meet the standard. Also, EPA did not dispute the evidence presented by 

Petitioner NRDC of violations of the 1-hour standard. ER, at 094-95, 100, 104. 

Standing does not require that the action being challenged make the harm 

worse. It is enough that environmental degradation has already occurred, and that 

the action being challenged would not give effect to the statutory remedy intended 

to reduce the adverse effects of such degradation on Petitioners’ future lives. In 

this case, residents in the South Coast, San Joaquin Valley, and Ventura do not 

breathe air that meets the 1-hour ozone standard by the relevant deadline. 

This Court subsequently re-affirmed that merely the anticipated exposure to 

the future adverse effects of air pollution is enough to establish standing. Hall v. 

Norton, 266 F.3d at 976 (“Hall in averring that his respiratory discomfort will be 

aggravated by emissions from developments on former BLM lands, asserts an 

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injury that is sufficiently concrete and particularized to satisfy standing.”). “It 

follows that evidence of a credible threat to the plaintiff’s physical well-being from 

airborne pollutants falls well within the range of injuries to cognizable interests 

that may confer standing.” Id. If “a credible threat to [petitioner’s] physical wellbeing from airborne pollutants falls well within the range of injuries to cognizable 

interests that may confer standing,” Id; see also City of Los Angeles v. Lyons, 461 

U.S. 95, 107 n.8 (1983), then Petitioners’ evidence showing that their members’ 

well-being is now adversely affected by ozone, and exposure to such pollutant is 

likely to continue as a result of the challenged agency action, constitutes a much 

more concrete interest. 

Petitioners’ stake is also “particularized” within the meaning of Lujan, 504 

U.S. at 561, n.1, (“particularized” means that “the injury must affect the plaintiff in 

a personal and individual way”), because each of Petitioners’ members experience 

a unique personal harm from exposure to ozone. See Declarations of Petitioners’ 

Members. That the injury caused by air pollution, may be shared by millions of 

other people in the air basin, does not deprive each injured person of a 

particularized injury. See Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (“The 

fact that particular environmental interests are shared by the many rather than the 

few does not make them less deserving of legal protection through the judicial

process.”); US v. SCRAP, 412 U.S. 669, 687 (1973) (“Standing is not to be denied 

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simply because many people suffer the same injury.”); accord Warth v. Seldin, 422 

U.S. 490, 501 (1975). 

B. Petitioners Satisfy the Causation Test. 

The causation test requires that “the injury is fairly traceable to the 

challenged action of the defendant.” Bernhardt v. County of Los Angeles, 279 F.3d 

862, 868 (9th Cir. 2002) (quoting Laidlaw). In cases challenging an agency action 

that fails to fully implement remedial statutes, this Court has not required a 

showing that the agency action causes the environmental harm that is the source of 

a party's injury. Rather causation arises from an agency’s failure to implement the 

required remedies. For example, in Biodiversity Legal Foundation v. Badgley, 309 

F.3d 1166, 1172 (9th Cir. 2002), the Court implicitly found causation sufficient for 

standing based on an agency’s failure to implement the remedial steps required by 

the Endangered Species Act to protect threatened species because the agency’s 

failure “will result in continued threats to their existence.” 

Here, Petitioners’ injuries from air pollution may be traced to three effects of 

EPA's decision: 1) excess ozone that will remain in the air because the EPA final 

rule fails to require that CARB and the District develop a plan to show attainment 

of the 1-hour ozone standard; 2) excess ozone that will remain from failure to 

require transportation measures aimed at reducing pollution; and 3) the excess 

emissions allowed from failure to control pesticides, emissions that would 

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otherwise not occur. Further, Petitioners are further injured due to EPA’s approval 

of unenforceable commitments in the State Strategy, which could preclude 

Petitioners from seeking redress if these measures are not implemented. 

Petitioners will likely suffer greater future harm because ozone levels will be 

above the 1-hour standard and remain in the air for a longer duration than they 

would be if EPA had not acted unlawfully. Had the rule followed Congress’ 

mandates, there would necessarily be a viable, enforceable clean air plan in place. 

EPA’s approval of these inadequate provisions also deprives Petitioners of 

the benefits that flow from the regulatory requirements that would otherwise 

govern a fully adequate attainment plan. For example, section 182 of the Act 

requires that nonattainment areas provide additional transportation improvements 

(e.g. improvements to public transit, addition of bicycle lanes, etc.) that are geared 

towards constraining ozone pollution. 42 U.S.C. § 7511a(d)(1)(A). Since EPA has 

not required CARB to submit these measures, EPA deprives Petitioners’ members 

of the benefits associated with these transportation improvements. Moreover, 

EPA’s unlawful approval of inadequate and unenforceable plans deprives 

petitioners of significant air quality improvements through weakened enforcement 

opportunities for failures to comply with the EPA-approved SIP measures. This 

harm is directly traceable to EPA’s action. 

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C. Claims Will Be Redressed By The Relief Sought. 

Petitioners seek to vacate EPA’s final rule based on the following 

deficiencies: 1) failure to require that CARB and the SCAQMD develop a plan to 

show attainment of the 1-hour standard; 2) failure to require Transportation 

Control Measures pursuant to 42 U.S.C. § 7511a; 3) approval of unenforceable 

commitments in the SIP. By a redress of these deficiencies—creating a clear, 

enforceable plan to meet the clean air standards—ozone levels in the South Coast 

will significantly improve over time. Reduction in ozone levels will alleviate 

Petitioners’ harm. This result satisfies the test for redressability. See Ecological 

Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1152 n.12 (9th Cir. 

2000) (Plaintiffs can satisfy the “redressability” factor by showing that 

enforcement of the statutorily required control measures are likely to reduce the 

risk of the pollution causing their injury); Swan v. Clinton, 100 F.3d 973, 980 

(D.C. Cir. 1996)(holding that partial relief is sufficient for redressability). 

III. THE EPA’S FAILURE TO REQUIRE A PLAN THAT MEETS 

ATTAINMENT OF THE 1-HOUR STANDARD VIOLATES THE 

ACT. 

Attainment of clean air standards is the primary and ultimate goal of 

Congress’ air quality planning process. Accordingly, EPA violated the Act by 

failing to compel California to submit a plan that would attain the 1-hour standard. 

See 42 U.S.C. § 7410(a)(2)(A)(a plan should “include enforceable emission 

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limitations and other control measures, means or techniques..., as well as 

schedules and timetables for compliance, as may be necessary or appropriate to 

meet the applicable requirements of this chapter”); 42 U.S.C. § 7511a(c)(2)(A)(“A 

demonstration that the plan, as revised, will provide for attainment of the ozone 

[NAAQS] by the applicable attainment date.”)(emphasis added). 

This Court has consistently held that EPA may not approve an attainment 

plan if the plan fails to require emissions reductions sufficient to attain the clean air 

standard. Delaney v. EPA, 898 F.2d 998 (9th Cir.), cert.denied, 111 S.Ct. 556 

(1990); Arizona v. Thomas, 294 F.2d 834 (9th Cir. 1987); Hall, 273 F.3d at 1155. 

Concluding that the basic criteria for EPA’s approval of SIP revisions adopted by 

the Supreme Court in 1975 continue to apply, this Court reiterated that “[t]he 

objective of the EPA’s analysis is to determine whether ‘the ultimate effect of a 

State’s choice of emission limitations is compliance with [NAAQS].’” Hall, 273 

F.3d at 1159 (quoting Train v NRDC, 421 U.S. 60 (1975). “EPA must determine 

the extent of pollution reductions that are required and determine whether the 

emissions reductions effected by the proposed revisions will be adequate to the 

task.” Id. “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.” Id. 

In the instant case, EPA argues that its duty to require an attainment plan 

somehow ceased in 2000 when it approved the 1997/1999 Plan. ER, at 003-04. 

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EPA makes this argument despite the fact that CARB and SCAQMD 

acknowledged that based on new information (e.g. an updated emissions 

inventory), the 1997/1999 Plan was inadequate to meet the 1-hour standard by 

2010. ER, at 113, 249. EPA also argues that since it determined the 1997/1999 

Plan attained the 1-hour standard based on the information presented to the agency 

in 1997 and 1999, the 2003 South Coast Plan does not need to demonstrate 

attainment. ER, at 003. EPA argues this is the case even if it is shown that the 

1997/1999 Plan is not a viable path to attain the 1-hour standard by 2010. EPA 

further argues that the 2003 South Coast Plan was a “discretionary” plan, so EPA 

does not need to ensure the plan attains the 1-hour standard. ER, at 003-04. We 

will address these arguments below. 

Congress spoke directly to the issue here, mandating that EPA shall impose 

sanctions and promulgate a Federal Implementation Plan if California fails to 

submit a plan that demonstrates attainment of the 1-hour standard. EPA’s decision 

to disapprove the attainment demonstration and do nothing more is arbitrary and 

capricious. 

A. EPA Violated its Duty to Ensure the 2003 South Coast Plan 

Demonstrates Attainment. 

EPA found that the 2003 State Strategy and the 2003 South Coast Plan fail to 

demonstrate sufficient reductions of ozone-forming pollution to meet the 1-hour 

standard by 2010. Despite this fundamental deficiency in the plans, EPA’s final 

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rule does nothing to compel CARB or the District to submit a plan which does

reduce emissions to attain the standard. 

Congress spoke to no exception when it mandated that attainment plans shall 

contain emission limitations and other control measures to provide for attainment 

of clean air standards by the applicable deadline. 42 U.S.C. §§ 7410(a)(2)(A), 

7502(c)(6) (“plan provisions shall include enforceable emission limitations, and 

such other control measures . . . to provide for attainment . . . by the applicable 

attainment date); 42 U.S.C. § 7511a(d)(1)(A)(statutory requirement that SIP 

“provide adequate enforceable control measures to allow total area emissions to 

comply with [Reasonable Further Progress] and attainment requirements). EPA 

ignores this plain language in the Act when it contends that it need do nothing after 

finding that the 2003 South Coast Plan does not include sufficient control measures 

to demonstrate attainment. To the contrary, EPA has the affirmative duty under 

sections 110(c) and 179 of the Act to take over air quality planning by 

promulgating a Federal Implementation Plan and withholding federal highway 

funding unless and until California corrects the deficiency that EPA has found. 

See 42 U.S.C. §§ 7410(c)(1)(B) (“The Administrator shall promulgate a Federal 

implementation plan at any time within 2 years after the Administrator . . . 

disapproves a State implementation plan submission in whole or in part”); 

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7509(a)(2) (sanctions required for disapproval of plan submission unless 

corrected). 

B. EPA’s Failure to Require a New Attainment Demonstration is 

Arbitrary and Capricious in Light of Significant New Information 

that Rendered the Outdated 1997/1999 Plan Ineffective. 

After sitting on the 2003 South Coast Plan for almost five years, EPA 

decided in 2008 it could disapprove the attainment demonstration and not require a 

plan that would attain the 1-hour standard. ER, at 006. This approach ignores 

significant relevant facts about the need for the 2003 South Coast Plan. In 

reference to why the agencies developed and submitted the plan to EPA, the 

District stated— 

The California Clean Air Act requires a non-attainment area to update its 

AQMP triennially to incorporate the most recent available technical 

information. 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. 

ER, at 113. Here, EPA argues that it can ignore the updated demographic data, 

new air quality data, and information on estimating motor vehicle emissions that 

rendered the 1997/1999 Plan ineffectual. This “fail[ure] to consider an important 

aspect of the problem,” Motor Vehicle Mfrs. Ass’n of the U.S., Inc., 463 U.S. at 43, 

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renders the agency’s action arbitrary and capricious. Thus, even if this plan is a 

discretionary plan as EPA argues, the decision not to require an updated attainment 

plan is arbitrary. Based on the District’s and CARB explanation, we now know 

that the assumptions underlying the 1997/1999 Plan are no longer valid. ER, at 

119. As CARB further noted there was a “need for much greater emission 

reductions” to attain the 1-hour standard than what was provided in the 1997/1999 

South Coast Plan. ER, at 119. As a result of this new information, we know that 

the old 1997/1999 Plan is not going to work as envisioned. In fact, EPA does not 

argue in either the proposed or final rule that the 1997/1999 Plan will be effective 

in attaining the standards. It is absurd for EPA to pretend that nothing has changed 

and that EPA can reasonably stand behind the original approval of the 1997/1999 

Plan. 

C. The 2003 South Coast Plan is Not Discretionary, and EPA Must 

Require an Updated Plan Because the Prior Plan Is Patently Out 

of Date. 

EPA erred in determining that CARB and the District were not required to 

submit an ozone plan in 2003. EPA does not “cogently explain,” Id. at 48, why it 

can ignore key provisions of the Act. The conformity provisions of the Act tie 

transportation planning and federal funding to achieving NAAQS by way of the 

Motor Vehicle Emissions Budgets (“MVEBs”) because the NAAQS cannot be 

attained without limiting motor vehicle emissions. The Act requires conformity to 

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“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.” 42 U.S.C. § 7506(c)(1). The conformity requirements ensure that the 

region’s transportation plan and program will achieve the emissions reductions 

needed to meet clean air standards. The need for this tie plays out most 

persuasively in areas like Los Angeles where motor vehicles play such a large role 

in contributing to violations of NAAQS. ER, at 166 (constituting 89% of the NOx 

and 54% of the VOC emissions in 2010). 

Under the Act, EPA can make an initial adequacy determination before it 

fully reviews the SIP submission. 40 C.F.R. §93.118(e)(4). This adequacy 

determination can take place soon after a plan is submitted to EPA and allows the 

region’s transportation plan and the projects contained within that plan to pass the 

conformity hurdle pending EPA’s full review of the entire plan. In the instant 

case, more than five years elapsed between the adequacy determination and EPA’s 

final decision that the MVEBs are inadequate to achieve the 1-hour standard. In its 

decision vacating the portion of EPA’s 1997 conformity rule that allow submitted 

MVEBs to take effect without any review by EPA, the D.C. Circuit interpreted the 

Act to bar use of a MVEB for conformity purposes if the SIP from which it came 

failed to require enough emission reductions to provide for attainment. 

Environmental Defense Fund, 167 F.3d 641, 650 (D.C. Cir. 1999). This is 

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perfectly sensible because emission budgets that do not get a region to attainment 

of the ozone standard are ineffectual in meeting the goals of the Act. 

For the 2003 South Coast Plan, the EPA made its adequacy determination 

for the MVEBs shortly after the plan was submitted in 2004. EPA’s adequacy 

determination states— 

The plan provide for attainment or maintenance (as appropriate) of the 

relevant ambient air quality standard. We have preliminarily determined that 

the South Coast SIP submittal provides for progress and attainment of the 1-

hour ozone, PM10, and CO NAAQS, and maintenance of the nitrogen 

dioxide (NO2) NAAQS, and that the budgets associated with the plans are 

consistent with the plan and, therefore, can be found adequate. 

69 Fed. Reg. 15325 (Mar. 25, 2004). Five years after EPA determined the budgets 

were adequate and numerous projects proceeded, EPA is now arguing that it does 

not need to find that the plan attains clean air standards. Because the 2003 Plans 

were needed “to avoid a transportation conformity lapse and associated federal 

funding losses”, ER, at 113, EPA’s stance of ignoring that the South Coast Plan 

fulfilled this role, is arbitrary and capricious. This allowed years of transportation 

projects to proceed in the South Coast without the associated emissions benefits 

from control measures aimed at reducing that pollution.7

 

 

7 The Transportation Improvement Program is a prioritized listing of transportation 

projects eligible for federal funding over a four year period. 23 U.S.C. § 

134(g),(h); 49 U.S.C. §§ 5303(f), 5304(b); 23 C.F.R. § 450.218. Thus, the 2003 

ozone budgets that were later deemed inadequate allowed a full four-year cycle of 

projects to be completed without being designed to achieve the emission levels 

needed for attainment in the nation’s most ozone polluted region. 

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 Under EPA’s interpretation, a state could submit new MVEBs as part of an 

attainment plan, receive an adequacy determination, and then remove its 

commitments to adopt controls on pollution before EPA acts on the final plan. 

This offers residents of polluted areas an unfavorable tradeoff. EPA could 

effectively open up the floodgates for transportation projects and plans and never 

require emissions reductions. Because EPA’s actions here do not comport with the 

Act, and it failed to “cogently” explain why it does not need to require an 

attainment demonstration, the agency has acted arbitrarily and capriciously. 

IV. EPA’S RE-APPROVAL OF THE PESTICIDE ELEMENT’S 

DISCRETIONARY COMMITMENT TO ADOPT 

REGULATIONS VIOLATES THE ACT. 

The 2003 State Strategy re-commits to implement the Pesticide Element, 

California’s strategy for reducing smog-forming VOC emissions from structural 

and agricultural pesticides. Originally submitted by CARB as a component of the 

1994 Ozone SIP, EPA approved the Pesticide Element in 1997. EPA has 

interpreted the Pesticide Element to include a commitment to reduce VOC 

emissions by 20 percent from 1990 levels by 2005 in five ozone nonattainment 

areas, to achieve a tonnage reduction in each area’s attainment year, and a 

commitment to adopt any regulations necessary to achieve this reduction by June 

15, 1997. 

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The Act requires that attainment plans contain enforceable emissions 

limitations and other control measures. The Ninth Circuit’s Warmerdam decision 

held that the Pesticide Element’s commitment to adopt regulations in the Wells 

Memorandum was not approved as a part of the State Implementation Plan, which 

deprived the Court of jurisdiction and made the commitment discretionary and not 

enforceable by the public. After this Court’s ruling, EPA should have disapproved 

the Pesticide Element’s commitment to adopt regulations. EPA’s approval of the 

Pesticide Element of the 2003 State Strategy without an enforceable commitment 

to adopt regulations violates the Act. 

A. Commitments to Adopt Regulations Must be Enforceable. 

The Act requires that emission limitations and control measures included in 

an attainment plan be enforceable. 42 U.S.C. § 7410(a)(2)(A);8

 42 U.S.C. § 

7502(c)(6) (enforceable emissions limitations required for nonattainment areas). 

The Act defines an emission limitation as “any condition or requirement under an 

applicable implementation plan.” 42 U.S.C. § 7604(a)(1). Plans must include 

programs “to provide for the enforcement of” emission limitation measures (“the 

measures described in subparagraph (A)”). 42 U.S.C. § 7410(a)(2)(C). EPA may 

only approve plans that satisfy the Act’s requirements. 42 U.S.C. § 7410(k)(3). 

 

8

 State Implementation Plans shall contain “enforceable emissions limitations and 

other control measures, means, or techniques . . . as well as schedules and 

timetables for compliance.” 42 U.S.C. § 7410(a)(2)(A) (emphasis added). 

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Upon approval by EPA, an attainment plan becomes federal law as part of 

the EPA-approved State Implementation Plan. Safe Air for Everyone v. EPA, 475 

F.3d 1096 (9th Cir. 2007); Bayview Hunters Point Cmty. Advocates v. Metro. 

Transp. Comm'n, 366 F.3d 692, 695 (9th Cir. 2004). EPA and private citizens may 

sue to enforce the strategies in the EPA-approved State Implementation Plan but 

may only “‘enforce specific measures, strategies, or commitments designed to 

ensure compliance with the NAAQS.’” Bayview, 366 F.3d at 695, 703, quoting 

Conservation Law Found. Inc. v. Busey, 79 F.3d 1250, 1258 (1st Cir. 1996); see 

also 42 U.S.C. § 7604(a). 

EPA has historically interpreted the Act “to allow states to submit 

enforceable commitments to adopt rules in the future.” 62 Fed. Reg. at 1156. 

States may submit attainment demonstrations that rely in part on commitments to 

adopt measures and such commitments must be enforceable. See 73 Fed. Reg. 

41277, 41281 (Jul. 18, 2008), (committal measures approvable only if 

enforceable). According to EPA, an attainment plan commitment approved “under 

section 110(k)(3) allows for enforcement action” either by the Agency, “through a 

finding of failure to implement if the state does not meet its enforceable 

commitment,” or by the public. 62 Fed. Reg at 1156. “[C]ourts have found these 

commitments to be enforceable by the public under the citizen suit provisions of 

the Act.” Id. 

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Unless commitments are required to be enforceable, the Supreme Court has 

observed that “local and regional agencies could define their commitments as 

vaguely as possible in order to avoid constraint and reform, and then later redefine 

strictures away if faced with unpopular tradeoffs.” General Motors Corp. v. United 

States, 496 U.S. 530, 533 (1990). 

B. The Pesticide Element’s Commitment to Adopt Regulations is 

Unenforceable. 

1. EPA has interpreted what is necessary to make the Pesticide 

Element enforceable. 

a. 1994 Ozone SIP approval 

As first submitted to EPA in 1994, the Pesticide Element did not meet the 

requirements of the Act, primarily because it failed to include specific dates for the 

adoption and implementation of any regulations necessary to achieve the required 

reductions.9

 ER, at 047-48, 049-50, 051-52. EPA did not propose approval of the 

Pesticide Element until CARB submitted the Wells Memorandum, which 

committed to adopting any regulations necessary to reduce VOCs “by specific 

percentages of the 1990 base year emissions, by specific years, and in specific 

 9

 EPA sought, inter alia, (1) a “commitment to limit VOC emissions from 

pesticides to specific percentages of the 1990 base year emissions by specific 

years in specific non attainment areas regardless of future growth in emissions 

that might occur” (emphasis added) (E.R. at C-2-b p.1); (2) a commitment to 

implement regulations by a certain date; (3) a commitment to adopt any 

necessary regulations by a specific month prior to the implementation date.

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nonattainment areas.” ER, at 053-54. Although CARB later requested in the 

Howekamp Letter that these interim goals and standards be deleted, EPA 

reaffirmed its intent to approve an enforceable Pesticide Element in the Final Rule 

by quoting the Wells memorandum. 62. Fed. Reg. at 1150, 1169-70. 

In the 1994 Ozone SIP final rulemaking, EPA articulated its position that the 

commitment to adopt regulations included in the Pesticide Element 1994 Ozone 

SIP is an enforceable commitment. 62 Fed. Reg. at 1170. EPA approved the 

entire SIP under section 110(k)(3). Id. 

EPA believes that the SIP commitments approved today are sufficiently 

specific to be enforceable by the Agency or the public. For example, the 

control measure commitments are for particular agencies to adopt and 

implement controls by definite dates to achieve precise emission reduction 

from identified source categories for each milestone year through 

attainment. 

Id. at 1156. 

b. 2008 Ventura SIP Revision.

In July 2008, EPA interpreted the Pesticide Element’s commitment to adopt 

regulations in the final rule “Revisions to the California State Implementation Plan; 

Pesticide Element; Ventura County.” 73 Fed. Reg. 41277 (Jul. 18, 2008). EPA 

again referred to the June 15, 1997 deadline to adopt any regulations necessary. Id. 

EPA explained the essential characteristics of enforceable SIP commitments as 

applied to the commitments in the Pesticide Element: 

Our interpretation of the original Pesticide Element commitment as having 

both a tonnage reduction commitment in addition to the percent reduction 

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commitment rests on general and specific grounds. First, EPA has 

traditionally found committal measures, such as the commitment to reduce 

VOC emissions in the Pesticide Element of the 1994 Ozone SIP, to be 

enforceable, and thus approvable, only if such measures identify the 

responsible party, adoption dates for rules, implementation dates, and 

emissions reductions in terms of emissions rates (such as tons per day) equal 

to the credit taken in the RFP or attainment plan for the committal measure. 

Id. at 41281(emphasis added). EPA further stated that “[e]ach specific element of 

a committal measure, once the measure is approved by EPA, is considered to be 

enforceable.” Id. To be enforceable, each element of a committal measure must 

be clear, specific, and measurable. EPA’s use of “only if,” denotes that the 

requirements that follow are necessary conditions for enforceability and therefore 

approvability of a committal measure. EPA further states that bare commitments 

to adopt measures are not enforceable. 

The tonnage specification provides the essential link between the committal 

measure and the RFP or attainment demonstration. [. . . ] In this case, the 

tonnage commitment (for 2005) links the original Pesticide Element 

commitment to the approved attainment demonstration for Ventura County. 

[. . .] Thus, we believe that EPA would not have found the original Pesticide 

Element commitment for Ventura approvable unless the measure included 

the 2.37 tons per day reduction in pesticide VOC emissions in 2005 that was 

credited to the measure in the 1994 Ozone SIP. 

 73 Fed. Reg. at 41281 (emphasis added). Measurable, clear, specific standards 

that can be enforced by the Agency or the public are necessary before EPA may 

approve a committal measure. 

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c. The 2003 State Strategy. 

The 2003 State Strategy describes the existing pesticide strategy in the 1994 

Ozone SIP: 

As described in the 1994 SIP and U.S. EPA’s notice approving that plan, 

DPR committed to reduce VOC emissions from pesticides through voluntary 

measures, with a regulatory backstop. Specifically, DPR committed to adopt 

and submit to U.S. EPA by June 15, 1997, any regulations necessary to 

reduce VOC emissions from agricultural and commercial structural 

pesticides by specific percentages of the 1990 base year emissions, by 

specific years, and in specific nonattainment areas. For the South Coast, the 

commitment is to reduce VOC emissions from pesticides to a level 20 

percent below 1990 base year emissions by the attainment year. 

ER, at 256. Again, this commitment uses the language of the Wells Memorandum, 

and its key date by which DPR would adopt necessary regulations. EPA approved 

this commitment with no further discussion about whether it is enforceable. 

2. The Ninth Circuit Held in Warmerdam that the Pesticide 

Element’s Commitment to Adopt Regulation is 

Unenforceable. 

On August 20, 2008, one month after EPA explained why it interpreted the 

Pesticide Strategy to contain enforceable commitments to adopt regulations, the 

Ninth Circuit held that the Wells Memorandum, was not part of the State 

Implementation Plan and the Court lacked jurisdiction over the plaintiff’s citizen 

suit to enforce the Wells Memorandum. Warmerdam, 539 F.3d at 1069-1072. The 

Ninth Circuit stated: 

Because we conclude that the schedule and interim standards of the Wells 

Memorandum are not part of the SIP, California would not have been in 

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violation of the SIP even if it had made no decision about the need for 

further regulations. And significantly, any such decision would have been 

discretionary by the language of the SIP ("a decision whether additional 

regulatory measures to ensure that reductions in pesticidal VOC emissions 

are achieved will be made by 1997"). 

Id. at 1069 (emphasis added). The Ninth Circuit further observed that the 

Howekamp Letter, not the Wells Memorandum, was “the last word in the saga of 

the SIP.” Id. at 1071. 

Simply put, because the SIP does not include the Wells Memorandum, the 

Pesticide Element does not contain an enforceable commitment to adopt 

regulations. The Strategy grants DPR discretion to determine how to attain the 20 

percent emissions reduction committed to in the Howekamp letter. 

C. EPA’s Re-Approval of the Pesticide Element Violates the Act. 

On March 10, 2009, seven months after the Ninth Circuit’s 

Warmderdam decision, twelve years after the June 15, 1997 deadline to adopt 

regulations in the Wells Memorandum, and four years after the deadline to achieve 

a 20 percent reduction in the Howekamp Letter, EPA approved the 2003 State 

Strategy, even though the commitment to adopt pesticide regulations was 

unenforceable under Warmerdam. See ER, at 001. Thus, EPA violated the Act by 

approving an unenforceable committal measure. 42 U.S.C. § 7410(a)(2)(A); 42 

U.S.C. § 7502(c)(6). 

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EPA’s approval of an unenforceable strategy directly conflicts with the plain 

language of the Act and frustrates Congress’ fundamental purpose in requiring 

meaningful plans to deliver healthy air. Allowing the California DPR total 

discretion to determine whether or not it will adopt regulations endows DPR with a 

peculiar authority to implement the dictates of the Act as DPR sees fit. The 

Supreme Court in General Motors cautioned against such usurpation of authority 

because a discretionary commitment is not only inherently unenforceable, it also 

contravenes the Act. See 496 U.S. at 533; 42 U.S.C. §§ 7410(a)(2)(A), 7502(c)(6). 

Thus, because the Pesticide Element lacks an enforceable commitment to 

adopt regulations, EPA’s approval of the strategy violates the Act. See 42 U.S.C. 

§§ 7410(a)(2)(A), 7502(c)(6). Accordingly, the Court should vacate EPA’s 

approval of the 2003 State Strategy. 

V. EPA UNLAWFULLY APPROVED CARB’S SIP REVISION IN 

VIOLATION OF CLEAN AIR ACT § 182(D)(1)(A), WHICH 

REQUIRES SEVERE AND EXTREME NONATTAINMENT 

AREAS TO ADOPT ENFORCEABLE TRANSPORTATION 

CONTROL MEASURES. 

 The Act requires all areas of the country to meet clean air standards, 42 

U.S.C. § 7410(a), including the 1-hour standard. SCAQMD v. EPA, 472 F.3d 882, 

904 (D.C. Cir. 2006)(“EPA can point to no aspect of Congress’s approach that 

suggest that [1-hour] ozone levels specifically addressed in statute are allowed to 

deteriorate.”). States with ozone nonattainment areas must adopt additional 

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pollution control measures and incorporate them into their SIPs, with the strictest 

additional controls mandated for those areas with the highest and unhealthiest 

levels of air pollution. Id. at §§ 7501-7515. The South Coast Air Basin has been 

classified as an “Extreme” nonattainment area for ozone, ER, at 115, meaning 

CARB must therefore revise California’s SIP and implement the additional ozone 

control requirements set forth in Title I, Part D of the Act. See 42 U.S.C. § 

7511a(e). 

 Among the additional provisions applicable to an extreme nonattainment 

area for ozone like the South Coast is section 182(d)(1)(A), which declares that 

each state in which a severe or extreme10 area is located “shall ... submit a 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 ...” 42 U.S.C. § 

7511a(d)(1)(A) (emphasis added). Stated more simply, a severe or extreme 

nonattainment area for ozone must adopt enforceable transportation control 

 

10 Section 182 classifies ozone nonattainment areas as “marginal”, “moderate”, 

“serious”, “severe”, or “extreme”. 42 U.S.C. § 7511a. Extreme nonattainment 

areas must meet the most strenuous requirements applicable to severe 

nonattainment areas as well as the additional requirements specific to extreme 

areas. 42 U.S.C. 7511a(e) (“Each State in which all or part of an Extreme Area is 

located shall, with respect to the Extreme Area, make the submissions described 

under subsection (d) of this section (relating to Severe Areas), and shall also 

submit the revisions to the applicable implementation plan (including the plan 

items) described under this subsection.”). 

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measures (“TCMs”)11 that offset the additional emissions resulting from an 

increase in vehicle miles traveled (“VMT”). The House Committee Report that 

accompanied adoption of section 182 during the 1990 Clean Air Act Amendments 

explains how to calculate emissions increases attributed to VMT, stating: “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.” 2 S. Comm. on Environment & Public Works, 103rd Cong., 

A Legislative History of the Clean Air Act Amendments of 1990 (Comm. Print 

1993) (“Legis. Hist.”) at 3266 (H.R. Rep. No. 101–490 (1990))[AD, at 81]. 

 There is no dispute that VMT has increased within the South Coast Air 

Basin and that vehicle emissions are higher than they would be if VMT held 

constant in the area. See ER, at 161-62. Nonetheless, CARB and the District have 

failed to adopt TCMs in the 2003 Plan and EPA approved the plans despite this 

failure. ER, at 001. Because “Congress has directly spoken to the ... issue,” 

Chevron, 467 U.S. at 842-43, under the plain language of section 182(d)(1)(A) 

CARB’s SIP is inadequate as a matter of law and EPA’s approval of it is equally 

unlawful. See also Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 134-35 

 

11 TCMs are “strategies that adjust trip patterns or otherwise modify vehicle use in 

ways that reduce air pollutant emissions.” ER, at 203-231. Examples of TCMs 

include improving public transit; developing and encouraging use of high 

occupancy vehicle (HOV) lanes; promoting bicycling and walking; facilitating 

van-pools and smart shuttles; and managing congestion to reduce emissions from 

idling vehicles. See generally 42 U.S.C. § 7408(f); see also ER, at 173-78. 

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(1999) (an agency “does not have the power to adopt a policy that directly conflicts 

with its governing statute”). 

 In the Final Rule, EPA attempts to justify its failure to require CARB to 

adopt TCMs by offering the agency’s own “alternative” interpretation of section 

182(d)(1)(A). ER, at 004. Whereas the plain language of section 182 specifically 

ties a state’s obligation to adopt TCMs to “growth in emissions from growth in 

vehicle miles traveled,” 42 U.S.C. § 7511a(d)(1)(A), EPA interprets section 182 to 

mean a state may lump higher emissions from increased VMT together with lower 

emissions related to other variables—including tailpipe controls and alternative 

fuels—and forego TCMs unless net emissions have increased across the area’s 

entire motor vehicle fleet. ER, at 004-05.12 EPA candidly acknowledges that the 

agency’s lenient reading of the statute cannot be reconciled with the explanation of 

section 182(d)(1)(A) provided in the House Committee Report. Id. at 04. Despite 

this clear evidence of Congressional intent, EPA insists in the Final Rule that 

section 182 is susceptible to “two alternative interpretations” and that the agency’s 

reading—intended to avoid overburdening severe nonattainment areas with 

adoption of “severe restrictions”—is “most reasonable.” Id. EPA does not 

 

12 According to EPA, “CAA section 182(d)(1)(A) requires states to adopt sufficient 

TCMs so that projected motor vehicle emissions, taking into account motorvehicle-related emissions controls and growth in VMT, will never be higher during 

the ozone season in one year than during the ozone season in the year before.” ER, 

at 005. 

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explicitly cite Chevron in the Final Rule but the agency’s position is obviously 

cloaked in the familiar standard: the agency asserts that section 182(d)(1)(A) is 

ambiguous (Chevron Step 1) and claims discretion to interpret the statutory in a 

manner it deems reasonable (per Chevron Step 2). 

 EPA’s defense of its failure to require CARB to adopt TCMs despite the 

growth of VMT in South Coast is unlawful because the plain language of section 

182(d)(1)(A) speaks directly to the issue. The operative clause of Section 

182(d)(1)(A) states in simple terms that a severe ozone nonattainment area “shall” 

adopt TCMs “to offset any growth in emissions from growth in vehicle miles 

traveled.” 42 U.S.C. § 7511a(d)(1)(A). The key clause is specific about 

“emissions from growth in vehicle miles traveled” and nothing in the text suggests 

that “growth” in such emissions should be measured against any baseline other 

than existing emissions from VMT. EPA employs a baseline “taking into account 

motor-vehicle-related emissions controls and growth in VMT,” ER, at 005 

(emphasis added), diluting VMT growth with considerations that are not 

mentioned in the text. To overcome a statute’s literal meaning EPA “must show 

either that, as a matter of historical fact, Congress did not mean what it appears to 

have said, or that, as a matter of logic and statutory structure, [Congress] almost 

surely could not have meant it.” New York v. EPA, 443 F.3d 880, 889 (D.C. Cir. 

2006) (quoting Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996)). 

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EPA has made no showing that Congress intended anything other than for all 

severe and extreme ozone nonattainment areas to adopt TCMs to offset increased 

emissions associate with increased VMT and “the court, as well as the agency, 

must give effect to the unambiguously expressed intent of Congress.” Chevron, 

467 U.S. at 842-43. 

 Significantly, EPA’s assertion that section 182 is “susceptib[le]” to “two 

alternative interpretations” does not make the statute’s language ambiguous. As 

this Court has explained previously, “Ambiguity for Chevron purposes ... ‘is a 

creature not of definitional possibilities, but of statutory context.’” Gallarde v. 

INS, 486 F.3d 1136, 1141 (9th Cir. 2007) (quoting Brown v. Gardner, 513 U.S. 

115, 118 (1994)). “In ascertaining the plain meaning of the statute, the court must 

look to the particular statutory language at issue, as well as the language and 

design of the statute as a whole.” K-Mart Corp. v. Cartier Inc., 486 U.S. 281, 291 

(1988). 

 When viewed in context, Congress’s intent to require severe and extreme 

ozone nonattainment areas to adopt enforceable TCMs to offset any additional 

emissions resulting from growth in VMT—independent of other trends in overall 

vehicle emissions—becomes plain. The specific clause in section 182(d)(1)(A) 

requiring adoption of TCMs to offset growth in emissions from VMT is part of a 

longer sentence that includes a second, more general mandate for states “to attain 

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reduction in motor vehicle emissions.” The key sentence in section 182(d)(1)(A), 

in its entirety, states: 

(A) 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 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) (emphasis added). Per the plain language of section 

182, states containing a severe or extreme nonattainment area for ozone must adopt 

TCMs for two independent purposes: “to offset any growth in emissions from 

growth in vehicle miles traveled ... and to attain reduction in motor vehicle 

emissions as necessary ... to comply with the requirements of subsection (b)(2)(B) 

and (c)(2)(B).”13 Id. (emphasis added). EPA’s approach, allowing a state to ignore 

growth in emissions from growth in VMT so long as the state can “demonstrat[e] 

 

13 The reference to “(b)(2)(B)” refers to 42 U.S.C. § 182(b)(2)(B), which requires 

that plans demonstrate that they include reasonably available control technology. 

The reference to “(c)(2)(B)” refers to 42 U.S.C. § 182(c)(2)(B), which requires 

plans submitted to EPA show that they will achieve reasonable further progress, 

which sets a percentage of reductions that a plan must achieve by certain dates 

between plan approval and the attainment date. 

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... declining motor vehicle emissions each year through the attainment year,” ER, 

at 005-06, gives effect to the second clause of the sentence but ignores the first. 

 EPA’s reading thus violates the “cardinal principle of statutory construction” 

that “a statute ought, upon the whole, to be so construed that, if it can be prevented, 

no clause, sentence, or word shall be superfluous, void, or insignificant.” Duncan 

v. Walker, 533 U.S. 167, 174 (2001) (internal quotation marks and citations 

omitted); see also Colautti v. Franklin, 439 U.S. 379, 392 (1979) (it is an

“elementary canon of construction that a statute should be interpreted so as not to 

render one part inoperative,”); U.S. v. LSL Biotechnologies, 379 F.3d 672, 679 (9th 

Cir. 2004) (“[W]e strive to avoid constructions that render words meaningless.”). 

Indeed, as this Court has opined previously, “We cannot assume that Congress 

intended two separate provisions in the same sub-section to have the same 

meaning.” Padash, 358 F.3d at 1171. EPA’s interpretation of section 182 renders 

the statute’s strict, specific requirement to adopt TCMs to offset VMTs superfluous 

and insignificant and ascribes the two clauses of section 182(d)(1)(A) with the 

same meaning. Because it is incompatible with a “cardinal principle of statutory 

construction,” EPA’s interpretation of section 182(d)(1)(A) is unlawful and the 

Final Rule, predicated on the agency’s flawed interpretation, must be vacated and 

remanded. 

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 In the Final Rule EPA attempts to invoke statutory context in support of its 

toothless interpretation of section 182, arguing that a strict requirement for severe 

ozone nonattainment areas to offset growth in VMTs could result in the imposition 

of “draconian TCM’s [sic] such as no drive restrictions.” ER, at 004. According 

to EPA, the agency doubts that Congress “believed at the time it voted to pass the 

[1990 Amendments] that the words of this provision would impose such severe 

restrictions.” Id. This argument is disingenuous and self defeating. First, the 

suggestion that TCMs are necessarily “draconian” is false. The District initially 

proposed to adopt several modest but effective TCMs to comply with section 

182(d)(1)(A), see generally ER, at 203-231,14 before controversially withdrawing 

the measures from its proposed plan. ER, at 004. 

Second, and more importantly, Congress was unquestionably aware of the 

potential consequences of requiring adoption of TCMs, as Congress itself 

prescribed the list of TCMs that states could implement to offset VMT. See 42 

U.S.C. 7511a(d)(1)(A) (“The State shall consider measures specified in section 

7408(f) of this title, and choose from among and implement such measures as 

necessary to demonstrate attainment with the national ambient air quality 

 

14 CARB’s SIP revision initially included plans to expand and improve: (a) HOV 

lanes; (b) bus, rail, and shuttle transit; (c) park and ride lots; and (d) bicycle and 

pedestrian facilities. The SIP revision also included information-based programs 

intended to promote and popularize alternatives to single occupancy vehicle 

commute trips. See ER, at 178-79. 

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standards; ...”).15 EPA concedes that Congress established “intricate planning 

requirements ... to bring areas toward attainment of the ozone standard,” ER, at 

005-06, but EPA’s interpretation of section 182(d)(1)(A) glosses over the specific, 

intricate requirements of the statute. The Court “must reject those constructions 

that ... frustrate the policy Congress sought to implement,” Biodiversity Legal 

Foundation v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002) (citing Eisinger v. 

Fed. Labor Relations Auth., 218 F.3d 1097, 1100-01 (9th Cir.2000)), and overturn 

EPA’s unlawful interpretation. 

 The legislative history of section 182 provides a final refutation of EPA’s 

interpretation. As noted above the House Committee Report on section 182 states 

unequivocally: “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.” 2 Legis. Hist. at 3266 [AD, at 81]. EPA does 

not dispute the House Committee Report but avers that it isn’t persuaded because 

“[t]here is no further legislative history on this aspect of the provision.” ER, at 

004. EPA is completely mistaken. For example, many months after the House 

Committee Report, during the House debate on the conference report, 

 

15 CAA § 108(f)(1)(A) lists 26 TCMs, including “programs for improved public 

transit,” “restrictions of certain roads or lanes to ... high occupancy vehicles,” “trip 

reduction ordinances,” “programs ... for the convenience and protection of 

bicyclists,” and “programs to control extended idling of vehicles.” 42 U.S.C. § 

7408(f). 

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Representative Manton invoked the House Committee Report, declaring that “The 

House report language ...on the specific provisions to offset growth in vehicle 

miles traveled in severe ozone nonattainment areas[] makes it clear this is a 

requirement on the States in revising their State Implementation Plans.” 1 Legis. 

Hist. at 1304 [AD, at 76] (statement of Rep. Manton on Conference Report). 

Additionally, the language of section 182(d)(1)(A) originated with the Senate bill, 

3 Legis. Hist. at 4214-15 [AD, at 86-87] (S. 1630, 101st Cong. (1990)), and the 

Senate Committee Report read very similarly to the House Committee Report, 

stating: “Severe and extreme areas are required to offset growth in vehicle miles 

traveled by implementing the transportation controls listed in revised section 

108(f) of the Act ...” 5 Legis. Hist. at 8384 (S. Rep. 101-228 (1989)) [AD, at 100] 

(emphasis added). Significantly, the House Committee Report, the Senate 

Committee Report, and Representative Manton’s floor statement are phrased in 

terms of directly offsetting VMT or VMT emissions, as opposed to taking EPA’s 

position that TCMs must only be adopted when VMT emissions contribute to an 

overall increase in vehicle fleet emissions. 

 Section 182(d)(1)(A) addresses VMT directly and independently from other 

factors affecting automobile emissions and ozone levels because, as Congress was 

aware at the time of section 182’s adoption, increases in VMT undermine the 

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achievement of air quality objectives. As the Conference Report submitted by 

conferee Senator Baucus explains: 

The experience of the last 20 years makes clear that we 

cannot solve the air pollution crisis in major polluted 

areas like ... Los Angeles only by controlling industrial 

sources or making new cars cleaner. ... In addition, we 

have learned that the growth in vehicle use, nearly three 

percent per year nationwide, was a major factor in 

preventing the attainment of the ambient standards by the 

1987 deadline. 

It is clear that the goals of this bill—healthy and safe air 

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. 

1 Legis. Hist. at 1006-07 [AD, at 73-74] (Baucus Clean Air Conference Report). 

Senator Lieberman expressed the same sentiment, declaring that “In addition to 

strict controls on emissions from motor vehicles, the Senate bill recognizes that, 

for some parts of the country, it may become necessary to implement 

transportation control measures to reduce our reliance on the automobile.” 4 

Legis. Hist. at 4878 [AD, at 94] (statement of Sen. Lieberman). 

 The Court “interpret[s] a federal statute by ascertaining the intent of 

Congress and by giving effect to its legislative will,” Padash v. INS, 358 F.3d 

1161, 1168 (9th Cir. 2004) (citing Hernandez v. Ashcroft, 354 F.3d 824, 838 (9th 

Cir. 2003)), and must reject an agency’s interpretation if it has “no foundation in 

the statute or legislative history.” Quinlivan v. Sullivan, 916 F.2d 524, 526-27 (9th 

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Cir. 1990). Congress intended severe ozone nonattainment areas to adopt 

enforceable TCMs to offset any emissions resulting from an increase in VMT. 

This intent is manifested in the plain statutory language and clear statutory 

structure and verified by directly relevant legislative history. When “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 intent of Congress.” Chevron. at 

842-43. EPA’s “alternative” interpretation of section 182(d)(1)(A) is inconsistent 

with the plain language of the statute and the agency’s approval of the South Coast 

Plan—which lacks enforceable TCMs to offset growth in VMT—is therefore 

unlawful. Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 134-35 (1999) (an 

agency “does not have the power to adopt a policy that directly conflicts with its 

governing statute”). 

// 

// 

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VI. CONCLUSION AND RELIEF REQUESTED

For the foregoing reasons, the Court should vacate the Final Rule and remand to 

the matter to EPA. 

Petitioners also respectfully request that they be awarded the costs of 

litigation, including reasonable attorneys fees, pursuant to 42 U.S.C. § 7607(f). 

Dated: August 21, 2009 /s Adriano L. Martinez

 DAVID PETTIT 

 MELISSA LIN PERRELLA 

 ADRIANO MARTINE 

 Natural Resources Defense Council 

 Counsel for Natural Resources Defense Council 

 /s Marybelle N. Nzegwu

 MARYBELLE N. NZEGWU 

 BRENT J. NEWELL 

 Center on Race, Poverty & The Environment 

Counsel for Association of Irritated Residents, El 

 Comité Para El Bienestar De Earlimart, and 

 Community Children’s Advocates Against 

 Pesticide Posioning 

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CERTIFICATE OF COMPLIANCE 

I certify that pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate 

Procedure and Ninth Circuit Rule 32-1 and Ninth Circuit Rule 28-4, the attached 

brief is proportionally spaced, has a typeface of 14 points or more, and contains 

14,256 words, exclusive of those parts of the brief exempted by Rule 32 (a) 

(7)(B)(iii). I have relied on Microsoft Word’s calculation feature to calculate the 

word limit. 

August 21, 2009 

/s Adriano Martinez 

Adriano Martinez 

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PROOF OF SERVICE 

I am employed in the County of Los Angeles, State of California. I am over 

the age of 18 and not a party to the within action. My business address is: 1314 2nd

Street, Santa Monica, CA 90401. 

On August 21, 2009 I electronically filed the foregoing document described as 

PETITIONER’S OPENING BRIEF, with the Clerk of the Court for the United 

States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF 

system. 

I certify that the below participants in this case registered as CM/ECF users 

will receive electronic service accomplished by the appellate CM/ECF system. I 

also certify that those listed below who are not registered as CM/ECF users will 

receive the exact same document filed with the CM/ECF system by electronic 

service via email and USPS. 

Austin D. Saylor 

U.S. Department of Justice 

Environment and Natural Resources Division 

Environmental Defense Section 

P.O. Box 23986 

Washington, DC 20026-3986 

(202) 514-1880 (t); (202) 514-8865 (f) 

FedEx Address: 

601 D Street, NW, Suite 8000 

Washington, D.C. 20004 

 (State) I declare under penalty of perjury under the laws of the State of 

California that the above is true and correct. 

 X (Federal) I declare that I am employee in the office of a member of the bar of 

this court at whose direction the service was made. 

Executed on August 21, 2009, at Santa Monica, California. 

/s Alana Karran 

Alana Karran 

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