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 PR OTECTION AGENCY, et al., Respondents AND NATURAL RESOURCES DEFE NSE COUNCIL, INC., Petitioner

v. UNITED STATES ENVIRONMEN TAL 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 Natu ral 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

Case: 09-71383 08/21/2009 Page: 1 of 74 DktEntry: 7037530ii CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of A ppellate Procedure 26.1, Petitioners, Association of Irritated Residents, El Comi té Para El Bienesta r De Earlimart, and Community Children’s Advocates Agains t Pesticide Poisoning, and Natural Resources Defense Council state that they are nonprofit organizations that have no parent companies and are not traded for profit.

Case: 09-71383 08/21/2009 Page: 2 of 74 DktEntry: 7037530iii STATEMENT OF RELATED CASES
In El Comité para el Bienestar de Earlimart v. U.S. Environmental Protection Agency , No. 08-74340 (9th Cir.), Petitione rs Association of Irritated Residents, El Comité para el Bienes tar de Earlimart, and Community and Children’s Advocates Against Pesticide Po isoning 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 cale ndared together for oral argument.

Case: 09-71383 08/21/2009 Page: 3 of 74 DktEntry: 7037530iv TABLE OF CONTENTS

STATEMENT OF JURISD ICTION.......................................................1 ISSUES PRESENTED FOR REVIEW....................................................1 STATEMENT OF CASE

................................................... .................2 STATEMENT OF FACT S..................................................................3 SUMMARY OF ARGUME NT............................................................19 ARGUMENT..................... ............................................................21 I. STANDARD OF RE VIEW........................... .............................21 II. PETITIONERS HAVE STANDING.............................................23 A. Petitioners Have Suffered, a nd Will Continue to Suffer an Injury-In-F act.............................................................25 B. Petitioners Satisfy th e Causation Test....................................29 C. Claims Will be Redresse d 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 th e 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 Case: 09-71383 08/21/2009 Page: 4 of 74 DktEntry: 7037530v Patently Out of Date.........................................................36
IV. EPA’S RE-APPROVAL OF THE PESTICID E ELELMENT’S DISCRETIONARY COMMITMENT TO ADOPT REGULATIONS VIOLATES THE AC T.............................................................39 A. Commitments to Adopt Regula tions Must be Enforceable............40 B. The Pesticide Element’s Co mmitment to Adopt Regulations is Unenforceabl e.............................................................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 APPR OVED CARB’S SIP REVISION IN VIOLATION OF CLEAN AI R ACT § 182(D)(1)(A), WHICH REQUIRES SEVERE NONATTAI NMENT AREAS TO ADOPT ENFORCEABLE TRANSPORTATIO N CONTROL MEASURES......47 VI. CONCLUSION AND RELIEF REQUESTED................................60

Case: 09-71383 08/21/2009 Page: 5 of 74 DktEntry: 7037530vi 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. Advo cates 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
C hevron 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

Case: 09-71383 08/21/2009 Page: 6 of 74 DktEntry: 7037530vii 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

Case: 09-71383 08/21/2009 Page: 7 of 74 DktEntry: 7037530viii 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., In c. 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

Case: 09-71383 08/21/2009 Page: 8 of 74 DktEntry: 7037530ix 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. Un ited 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

Case: 09-71383 08/21/2009 Page: 9 of 74 DktEntry: 7037530x 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 Case: 09-71383 08/21/2009 Page: 10 of 74 DktEntry: 7037530xi 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 Case: 09-71383 08/21/2009 Page: 11 of 74 DktEntry: 7037530xii

Case: 09-71383 08/21/2009 Page: 12 of 74 DktEntry: 70375301 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 re view 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 ac tion 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 Natura l Resources Defense Council (“NRDC”) timely filed its petition for re view on May 11, 2009. On June 29, 2009, this Court consolidated these separate petitions. ISSUES PRESENTED FOR REVIEW
1. Whether EPA acted arbitrarily, cap riciously and illegally by failing to require California to submit a plan that demonstrates attainment of the 1- hour ozone standard afte r approving the updated emissions inventory and concurrently disapproving the attainment demonstration. Case: 09-71383 08/21/2009 Page: 13 of 74 DktEntry: 70375302 2. Whether EPA acted arbitrarily, cap riciously and illegally when it reapproved the Pesticide Element’s di scretionary commitment to adopt regulations.
3. Whether EPA acted arbitrarily, cap riciously and illegally by failing to require California to submit Transpor tation Control Measures when it was shown that vehicle miles traveled incr eased in the Los Angeles-South Coast Air Basin. STATEMENT OF CASE Congress passed the Clean Air Act thirty-eight years a go, 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 h ealth-based clean air standards for ozone. This petition seeks to vindicate Californian’s statutory right to safe and healthy air. The Clean Air Ac t (“Act”) requires states with areas that fail to meet clean air standa rds to develop plans that se rve as a mandatory roadmap to achieve the standards. States must submit these plan s 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 stat es as a matter of fe deral 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 Count y, and Southwestern San Bernardino County. See generally 40 C.F.R. § 81.305. Case: 09-71383 08/21/2009 Page: 14 of 74 DktEntry: 70375303 to approve or disapprove parts of the oz one plans adopted by California in 2003. Instead, EPA chose to take actions th at 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 approv ed 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 tr ansportation—despite an increase in vehicle miles traveled in the South Coast. The Act requires EPA to ensure that Cal ifornia’s clean air plans attain the health-based ozone standard, provide for attainment using enforceable measures, and require Transportation Control Measures when vehicle miles tr aveled increase. As a remedy, the Court sh ould 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 uncheckab le problem of air pollution,” Union Elec. Co. v. Case: 09-71383 08/21/2009 Page: 15 of 74 DktEntry: 70375304 EPA, 427 U.S. 246, 256 (1976). Congress inte nded to protect and enhance the nation’s air quality in order to promote p ublic health and welfare. 42 U.S.C. § 7401(b). To achieve this objective, Congr ess imposes a carefully calibrated system where EPA promulgates national ambi ent air quality standards (“NAAQS” or “clean air standards”) for harmful air pol lutants that are sufficient “to protect public health” with “an ade quate 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” ba sed 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 po llution as “Marginal” and classifies the worst areas as “Extreme.” 42 U.S.C. § 7 511(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 demonstrat e 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 “Extre me” for the 8-hour ozone standard. EPA, Air Actions, California available at http://www.epa.gov/region0 9/air/actions/ca.html . As of the filing of the brief, it has not been published in the Federal Register. Case: 09-71383 08/21/2009 Page: 16 of 74 DktEntry: 70375305 to EPA for approval, showing in detail when and how federa l standards will be met. 42 U.S.C. §§ 7410(a), 7511a. Attainment plans have two main components: (1) the attainment demonstration, for which Congress mand ated that, using pr edictive computer modeling, the plan must demonstrate th at 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 amo ng two families of chemicals: volatile organic compounds (“VOC”) and nitr ogen oxides (“NOx”). As EPA has articulated “[o]zone causes serious hea lth problems by damaging lung tissue and sensitizing the lungs to other irritants. Wh en inhaled, even at very low levels, ozone can cause acute resp iratory 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, incl uding bronchitis and pneumonia.” ER, at 009. EPA has further noted that “[c]hild ren are most at risk from exposure to Case: 09-71383 08/21/2009 Page: 17 of 74 DktEntry: 70375306 ozone because they breathe more air per pound of body we ight 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 scie ntific review, EPA found that public health required a standard more stringent than the 1-hour standard. 62 Fed. Reg. 38856 (Jul. 18, 1997). Accordingly, EP A 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 Fe d. Reg. 23858 (Apr. 30, 2004). EPA included the South Coast, the San Joaquin Va lley, and several other parts of California as areas viola ting this more health protective 8-hour standard. Id. at 23884. Currently, the South Coast and the San Joaquin Valley Case: 09-71383 08/21/2009 Page: 18 of 74 DktEntry: 70375307 have until 2020 and 2013 respectively to me et the new 8-hour standard, but both have requested that they be given until 2024. Id. Also on April 30, 2004, EPA promulgate d 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 th at EPA effectively abolished the 1-hour standard in those area s after June 15, 2005. As of June 15, 2005, only the South Coast and San Joaqui n 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 organi zations 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 re voke 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. Case: 09-71383 08/21/2009 Page: 19 of 74 DktEntry: 70375308 California’s Air Pollution Problems California has the most intractable oz one problem in the nation. Despite significant work to control ozone concentra tions over the years, several places in the State continue to violate ozone standard s. 69 Fed. Reg. 23881 (Apr. 30, 2004). In 2003, the California Air Resources Bo ard (“CARB”) estimated that “attaining the State’s own health-based air quality st andards for particul ate 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 failu re to meet the standard is the South Coast, which continues to have th e highest ozone concentrations in the nation. ER, at 009. To cure these im pacts from high ozone levels, the State in conjunction with the South Coast Air Qu ality Management District (“SCAQMD” or the “District”) sought to reduce ozone and other pollution. The latest EPAapproved plan for ozone in the South Co ast is the 1997 Ozone Plan as amended by the 1999 Ozone Plan (“1997/1 999 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. Case: 09-71383 08/21/2009 Page: 20 of 74 DktEntry: 70375309 counties in the United States, respectively. ER, at 022. The South Coast continues to have the highest ozone concentrati ons in the nation. ER, at 009. Economists Jane V. Hall, Ph.D., a nd Victor Brajer, Ph.D., published a comprehensive analysis of the effects fro m 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 Va lley. ER, at 023. While th ese data are not directly related to the failure to meet the 1-hou r ozone standard, attaining the 1-hour standard reflects progress towards atta ining 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 pl an to attain the 1-hour standard by the 2010 deadline also means progress toward s 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. Case: 09-71383 08/21/2009 Page: 21 of 74 DktEntry: 703753010 The attainment plan for each region of California consists of two elements: 1) the State Strategy adopted by CARB a nd 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 th e measures apply to the entire state. Air districts, such as the SCAQMD, are charge d with developing, subject to CARB approval, region-speci fic 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 Sa n 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 m odeling. CARB noted that new information demonstrated “the need for much greater emission reductions than the [1997/1999 Plan].” ER, at 119. Of particular signifi cance, 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. Case: 09-71383 08/21/2009 Page: 22 of 74 DktEntry: 703753011 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 estima ted 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 mo deling 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 PM 10 have improved. Theref ore, a plan update is necessary to ensure continued progre ss toward attainment and to avoid a transportation conformity lapse and associated federal funding losses. ER, at 113. Accordingly, CARB committ ed to several additional measures to control ozone pollution in the 2003 State Strategy. Case: 09-71383 08/21/2009 Page: 23 of 74 DktEntry: 703753012 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 fina l 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 re flect the strategy as approved by EPA in 1997).” ER, at 001, 006, 286. The 1994 Ozone SIP

. ARB adopted the existing pesticide stra tegy 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 Joaq uin Valley, Ventura, and Southeast Desert oz one 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 orig inally 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 me morandum to CARB Executive Officer James Boyd (the “Wells Memorandum”) (ER, at 053-54). Case: 09-71383 08/21/2009 Page: 24 of 74 DktEntry: 703753013 The Wells Memorandum states: The Department of Pesticide Regula tion commits to adopt and submit to U.S. EPA by June 15, 1997, any regula tions necessary to reduce volatile organic compound emissions from agricu ltural and commercial structural pesticides by specific percentages of the 1990 base year emissions, by specific years, and in specific nonattain ment 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 clarifica tion” 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 Memoran dum 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 se nt another letter to EP A Region IX Air Division Director David Howekamp (the “H owekamp Letter”) asking for various Case: 09-71383 08/21/2009 Page: 25 of 74 DktEntry: 703753014 corrections to the Proposed Rule. ER, at 055-57. The Howekamp Letter requested that EPA delete the table “Reductions fr om 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 a pproving a non-discretionary commitment to adopt regulations in the Pesticide Elem ent. 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 dead line 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 J une 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 Ex isting 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 pes ticides 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 Case: 09-71383 08/21/2009 Page: 26 of 74 DktEntry: 703753015 reduce VOC emission from agricultural a nd commercial structural pesticides by specific percentages of the 1990 base year emissions, by specific years, and in specific nonattainment areas. For the South Coast, th e commitment is to reduce VOC emissions from pestic ides to a level 20 percent below 1990 base year emissions by the attainment year. ER, at 256. In 2008, EPA approved a revision to th e Pesticide Strategy for the Ventura nonattainment area only , in which EPA interpreted the Pesticide Commitment. See 73 Fed. Reg. 21885, 21886 (A pr. 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 percen t reduction commitment”). EPA then describes the commitment as including the June 15, 1997 da te to adopt “any regulations necessary.” Id. Under the original Pesticide El ement, for the Ventura County nonattainment area (Ventura), the Ca lifornia 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 pesticid es by 20 percent of the 1990 base year emissions by 2005. Id. at 41277. Case: 09-71383 08/21/2009 Page: 27 of 74 DktEntry: 703753016 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 th at the commitment to adopt regulations by June 15, 1997 in the Wells Memorandum was discreti onary. 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 schedul e 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 enforceabl e 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 subm itted 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 Case: 09-71383 08/21/2009 Page: 28 of 74 DktEntry: 703753017 (“MVEBs”) 4 for the South Coast based partia lly 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 a ll the commitments the various agencies made in the plan, the South Coast would reduce pollution enough to meet the 1- hour standard. Accordingly, EPA “prelim inarily 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 asso ciated with the plans are consistent with the plan and, therefore, can be found adequate.” Id. (emphasis added). Under the Act, federal funds for transportation proj ects 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 th at 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 th e...motor vehicle-related portions of the projected emission inventory used to de monstrate...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). Case: 09-71383 08/21/2009 Page: 29 of 74 DktEntry: 703753018 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. Th roughout 2008, CARB, the District, and the Southern California Association of Governments (“SCAG”) 5 deleted a myriad of commitments in the plan, including commit ments to reduce pollution from trucks, consumer products, and the transporta tion 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). Effectiv ely, 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 modeli ng demonstrated a need for more commitments than the outdated 1997/1999 Plan and the regulat ors gutted the emission reductions, the

5 The transportation plan and Transportation Improvement Program for a metropolitan area is developed by a re gional transportation planning agency established under federal law known as the metropo litan 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. Case: 09-71383 08/21/2009 Page: 30 of 74 DktEntry: 703753019 plans could no longer meet the 1-hour st andard. Accordingly, EPA disapproved the attainment demonstratio n. ER, at 006. Petitioners raised the following co mments on deficiencies in the 2008 proposed rule— 1) EPA’s proposal was unlawful beca use it failed to require that CARB and SCAQMD develop a plan to demonstrate attainment of the 1-hour standard. 2) The EPA cannot approve unenfor ceable 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 cont rary to the Act and is arbitrary and capricious under the Administrative Proce dure Act (“APA”). Several critical violations of the Act interfere with th e attainment of the 1-hour standard. Case: 09-71383 08/21/2009 Page: 31 of 74 DktEntry: 703753020 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 vehi cle 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 atta inment 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. A ttainment 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 pollu tion violates the Act and the APA. The Act requires that attainment plans incl ude 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 pe sticide strategy whereby the decision to adopt regulations is discretionary, and in direct conflict with the Act. Case: 09-71383 08/21/2009 Page: 32 of 74 DktEntry: 703753021 Third, EPA violated the Act when it failed to require that the 2003 South Coast Plan include Transportation Cont rol Measures, which are enforceable measures to reduce pollution from the S outh Coast’s transportation system. 42 U.S.C. § 7511a(d)(1)(A). The plain language and legislativ e history of the Act, as well as the deliberate structure of the Act, demonstrate that Transportation Control Measures are required when vehicle mile s traveled increase in a region. EPA diverges from the strict text of the stat ute and the legislative history and advances an approach that renders this provision of the Act superfluous. Because EPA’s interpretation frustrates Congr ess’s intent as manifested through the plain language of the statute, EPA’s decision to not requi re 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 re view for agency actions in the Administrative Procedure Act” and de termines “whether EPA’s actions were Case: 09-71383 08/21/2009 Page: 33 of 74 DktEntry: 703753022 ‘arbitrary, capricious, an abuse of discreti on, 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 arbitr ary, 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 EP A’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 discerne d 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 gi ve effect to the unambiguously expressed in tent 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 plai n 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 Case: 09-71383 08/21/2009 Page: 34 of 74 DktEntry: 703753023 (1988). “[T]he statute’s language, structur e, subject matter, context, and history” are the “factors that typically help c ourts 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 r easonable 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). Unle ss otherwise expressly indica ted, references in this brief to “unlawful” agency action addres s 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 inte nded it to consider, entirely failed to consider an important aspect of the probl em, [or] offered an explanation for its decision that runs counter to th e 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, wo rk, recreate and/or travel in the South Coast, which has been designated as nonattainment for the pollutant ozone. Case: 09-71383 08/21/2009 Page: 35 of 74 DktEntry: 703753024 See Declarations filed herewith [Adde ndum (“AD), at 102-126]. Moreover, Petitioners also have members injure d by EPA’s failure to disapprove an unenforceable commitment to adopt regulati ons to control pesticide air pollution in five regions of California. On behalf of these members, Petitioner organizations have standing to challenge EPA’s final ru le because their me mbers are harmed by current levels of pollution, and will con tinue 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 h ealth suffered by Petitioners’ members meets all the recognized tests for standing . This Court has construed the standing requirement to ensure that parties seekin g 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 presente d to the court will be resolved...in a concrete factual contex t 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). Case: 09-71383 08/21/2009 Page: 36 of 74 DktEntry: 703753025 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 c onclusion that the ev idence of exposures exceeding the ozone NAAQS by Petitioners demonstrates that their members suffer “concrete,” “particularized” and “i mminent” injuries from air pollution that violates clean air standards. The Act cr eates 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 inju ry 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). Case: 09-71383 08/21/2009 Page: 37 of 74 DktEntry: 703753026 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 da ys 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 (co llectively “Petitioners’ Members”) filed herewith. Petitioners’ members curtail physical exer cise and outdoor activities due to high pollution concentrations, lessening their qua lity 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 S upreme Court's environmental standing decision in Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000), found standing if an area would remain envi ronmentally 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 “re quisite 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 ex ceeded at all reference monitors in the South Coast. 73 Fed. Reg. 63409 (Oct. 24, 2008). Case: 09-71383 08/21/2009 Page: 38 of 74 DktEntry: 703753027 concern sufficient to make credible the co ntention 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 satisf action—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 th e present situation, EPA disapproved the attainment demonstration for the Sout h 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 di d not dispute the evidence presented by Petitioner NRDC of violations of the 1-h our standard. ER, at 094-95, 100, 104. Standing does not require that the ac tion being challenge d make the harm worse. It is enough that environmental de gradation has already occurred, and that the action being challenged w ould not give effect to th e statutory remedy intended to reduce the adverse effects of such de gradation 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 th at merely the anticipated exposure to the future adverse effects of air pollu tion 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 developmen ts on former BLM lands, asserts an Case: 09-71383 08/21/2009 Page: 39 of 74 DktEntry: 703753028 injury that is sufficiently concrete and particularized to satisfy standing.”). “It follows that evidence of a credible threat to the plai ntiff’s physical well-being from airborne pollutants falls well within the ra nge of injuries to cognizable interests that may confer standing.” Id. If “a credible threat to [petitioner’s] physical wellbeing from airborne pollutants falls well with in 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 show ing that their members’ well-being is now adversely affected by oz one, and exposure to such pollutant is likely to continue as a result of the cha llenged agency action, constitutes a much more concrete interest. Petitioners’ stake is also “particul arized” within the meaning of Lujan, 504 U.S. at 561, n.1, (“particulariz ed” means that “the injury mu st affect the plaintiff in a personal and individual wa y”), because each of Pe titioners’ members experience a unique personal harm fro m 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 intere sts 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) (“Standi ng is not to be denied Case: 09-71383 08/21/2009 Page: 40 of 74 DktEntry: 703753029 simply because many people su ffer 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 e nvironmental harm that is the source of a party's injury. Rather causation arises from an agency’s failu re 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 th reatened species be cause the agency’s failure “will result in continued threats to their existence.” Here, Petitioners’ injuries from air polluti on 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 Dist rict 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 cont rol pesticides, emissions that would Case: 09-71383 08/21/2009 Page: 41 of 74 DktEntry: 703753030 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 th ese 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 unlawfu lly. Had the rule followed Congress’ mandates, there would necessar ily be a viable, enforceable clean air plan in place. EPA’s approval of these inadequate pr ovisions also deprives Petitioners of the benefits that flow from the regulat ory 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, et c.) that are geared towards constraining ozone pollution. 42 U.S.C. § 7511a(d)(1)(A). Since EPA has not required CARB to submit these meas ures, 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 impr ovements through weakened enforcement opportunities for failures to comply with the EPA-approved SIP measures. This harm is directly traceable to EPA’s action. Case: 09-71383 08/21/2009 Page: 42 of 74 DktEntry: 703753031 C. Claims Will Be Redresse d 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 defi ciencies—creating a clear, enforceable plan to meet th e clean air standards—ozone levels in the South Coast will significantly improve over time. Re duction in ozone leve ls 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 “red ressability” factor by showing that enforcement of the statutorily required c ontrol 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 suffici ent for redressability).
III. THE EPA’S FAILURE TO REQU IRE 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 shoul d “include enforceable emission Case: 09-71383 08/21/2009 Page: 43 of 74 DktEntry: 703753032 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 th is 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 applicab le attainment date .”)(emphasis added). This Court has consistently held that EPA may not approv e 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 appl y, this Court reite rated that “[t]he objective of the EPA’s analysis is to dete rmine whether ‘the u ltimate 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). “E PA must determine the extent of pollution reductions that are required and determine whether the emissions reductions effected by the propos ed 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 attainme nt 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. Case: 09-71383 08/21/2009 Page: 44 of 74 DktEntry: 703753033 EPA makes this argument despite the fact that CARB and SCAQMD acknowledged that based on new info rmation (e.g. an updated emissions inventory), the 1997/1999 Plan was inadequa te 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 presen ted to the agency in 1997 and 1999, the 2003 South Coast Plan does not need to demonstrate attainment. ER, at 003. EP A argues this is th e case even if it is shown that the 1997/1999 Plan is not a viable path to a ttain the 1-hour standard by 2010. EPA further argues that the 2003 South Coast Pl an 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 demonstra tion 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 ozon e-forming pollution to meet the 1-hour standard by 2010. Despite this fundamental deficiency in the plans, EPA’s final Case: 09-71383 08/21/2009 Page: 45 of 74 DktEntry: 703753034 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 cont rol 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 incl ude 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 meas ures 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 c ontrary, 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 Pl an 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 Administ rator shall promul gate a Federal implementation plan at any time within 2 years after the Administrator . . . disapproves a State implementation plan submission in whole or in part”); Case: 09-71383 08/21/2009 Page: 46 of 74 DktEntry: 703753035 7509(a)(2) (sanctions required for di sapproval of plan submission unless corrected). B. EPA’s Failure to Require a Ne w Attainment Demonstration is Arbitrary and Capricious in Lig ht of Significant New Information that Rendered the O utdated 1997/1999 Plan Ineffective. After sitting on the 2003 South Coast Pl an for almost five years, EPA decided in 2008 it could disapprove the atta inment demonstration and not require a plan that would attain the 1-hour standa rd. ER, at 006. This approach ignores significant relevant facts about the need for the 2003 South Coast Plan. In reference to why the agencies devel oped 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 th e 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 th e 1997 SIP and the 1999 amendments were based on demographic forecasts of th e mid-1990’s using 1993 as the base year. Since then, updated demographic data has become av ailable, new air quality episodes have been identified, and the science for estimating motor vehicle emissions and air quality mode ling techniques for ozone and PM10 have improved. Therefore, a plan update is necessary to ensure continued progress toward attainment and to a void a transportation conformity lapse and associated fede ral funding losses. ER, at 113. Here, EPA argues that it can ignore the updated demographic data, new air quality data, and in formation 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, Case: 09-71383 08/21/2009 Page: 47 of 74 DktEntry: 703753036 renders the agency’s action arbitrary and cap ricious. Thus, even if this plan is a discretionary plan as EPA argues, the deci sion not to require an updated attainment plan is arbitrary. Based on the Distri ct’s and CARB explan ation, we now know that the assumptions underlying the 1997/ 1999 Plan are no longer valid. ER, at 119. As CARB further noted there wa s 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 No t Discretionary, and EPA Must Require an Updated Plan Becaus e the Prior Plan Is Patently Out of Date. EPA erred in determining that CARB an d 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. Th e conformity provisions of the Act tie transportation planning and federal funding to achieving NAAQS by way of the Motor Vehicle Emissions Budgets (“MV EBs”) because the NAAQS cannot be attained without limiting motor vehicle em issions. The Act requires conformity to Case: 09-71383 08/21/2009 Page: 48 of 74 DktEntry: 703753037 “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 c onformity 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 Lo s 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 initia l 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 betw een 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 wit hout any review by EPA, the D. C. Circuit interpreted the Act to bar use of a MVEB for conform ity purposes if the SIP from which it came failed to require enough emission reduc tions to provide for attainment. Environmental Defense Fund , 167 F.3d 641, 650 (D.C. Cir. 1999). This is Case: 09-71383 08/21/2009 Page: 49 of 74 DktEntry: 703753038 perfectly sensible because em ission budgets that do not ge t a region to attainment of the ozone standard are ineffectual in meeting the goals of the Act. For the 2003 South Coast Plan, the EP A 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 budge ts 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 pr oceeded, EPA is now arguing that it does not need to find that the pl an attains clean air standards. Because the 2003 Plans were needed “to avoid a transportation co nformity 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 caprici ous. This allowed years of transportation projects to proceed in the South Coast wi thout 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 ov er 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 late r 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 nati on’s most ozone polluted region. Case: 09-71383 08/21/2009 Page: 50 of 74 DktEntry: 703753039 Under EPA’s interpretation, a state could submit new MV EBs as part of an attainment plan, receive an adequacy determination, and then remove its commitments to adopt controls on polluti on before EPA acts on the final plan. This offers residents of polluted areas an unfavorable tradeoff. EPA could effectively open up the floodgates for tran sportation projects and plans and never require emissions reductions. Because EPA’s actions here do not comport with the Act, and it failed to “cogently” explai n why it does not need to require an attainment demonstration, the agency has acted arbitr arily 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 Pestic ide 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 nece ssary to achieve this reduction by June 15, 1997. Case: 09-71383 08/21/2009 Page: 51 of 74 DktEntry: 703753040 The Act requires that attainment pl ans contain enforceable emissions limitations and other control measures. The Ninth Circuit’s Warmerdam decision held that the Pesticide Element’s commit ment 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 ma de the commitment discretionary and not enforceable by the public. After this C ourt’s ruling, EPA should have disapproved the Pesticide Element’s commitment to ad opt regulations. EPA’s approval of the Pesticide Element of the 2003 State Stra tegy without an enforceable commitment to adopt regulations violates the Act. A. Commitments to Adopt Regulations Must be Enforceable. The Act requires that emission limitati ons 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 enforcemen t 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 tec hniques . . . as well as schedules and timetables for compliance.” 42 U.S.C. § 7410(a)(2)(A) (emphasis added). Case: 09-71383 08/21/2009 Page: 52 of 74 DktEntry: 703753041 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 EP A-approved State Implementation Plan but may only “‘enforce specific measures, st rategies, 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 th e Act “to allow states to submit enforceable commitments to adopt rules in the future.” 62 Fe d. Reg. at 1156. States may submit attainment demonstrations that rely in part on commitments to adopt measures and such commit ments must be enforceable. See 73 Fed. Reg. 41277, 41281 (Jul. 18, 2008), (comm ittal 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 th e 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 pub lic under the citizen suit provisions of the Act.” Id

. Case: 09-71383 08/21/2009 Page: 53 of 74 DktEntry: 703753042 Unless commitments are required to be enforceable, the Supreme Court has observed that “local and regional agenci es could define their commitments as vaguely as possible in order to avoid constr aint 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 Commitm ent to Adopt Regulations is Unenforceable. 1. EPA has interpreted what is n ecessary 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 regula tions 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 submitte d the Wells Memorandum, which committed to adopting any regulations n ecessary to reduce VOCs “by specific percentages of the 1990 base year emissi ons, 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 da te; (3) a commitment to adopt any necessary regulations by a specific m onth prior to the implementation date. Case: 09-71383 08/21/2009 Page: 54 of 74 DktEntry: 703753043 nonattainment areas.” ER, at 053-54. Although CARB later requested in the Howekamp Letter that these interim goa ls and standards be deleted, EPA reaffirmed its intent to approve an enforc eable 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 incl uded 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 Agen cy or the public. For example, the control measure commitments are for particular agencies to adopt and implement controls by definite date s 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 Pe sticide 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 deadli ne to adopt any regulations necessary. Id

. EPA explained the essential characteris tics of enforceable SIP commitments as applied to the commitments in the Pesticide Element: Our interpretation of the original Pe sticide Element commitment as having both a tonnage reduction commitment in addition to the percent reduction Case: 09-71383 08/21/2009 Page: 55 of 74 DktEntry: 703753044 commitment rests on general and specific grounds. First, EPA has traditionally found committal measures , such as the co mmitment to reduce VOC emissions in the Pesticide El ement 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 t ons per day) equal to the credit taken in the RFP or attain ment plan for the committal measure. Id . at 41281(emphasis added). EPA further st ated 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 elem ent of a committal measure must be clear, specific, and measurable. EP A’s use of “only if,” denotes that the requirements that follow are necessary c onditions for enforceability and therefore approvability of a committal measure. EP A 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 attainme nt demonstration. [. . . ] In this case, the tonnage commitment (for 2005) links the original Pesticide Element commitment to the approv ed attainment demonstration for Ventura County. [. . .] Thus, we believe that EPA w ould not have found the original Pesticide Element commitment for Ventura approvable unless the measure included the 2.37 tons per day reduction in pes ticide 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 th e Agency or the public are necessary before EPA may approve a committal measure. Case: 09-71383 08/21/2009 Page: 56 of 74 DktEntry: 703753045 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 pe sticides 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 agricultu ral and commercial structural pesticides by specific percentages of the 1990 base year emissions, by specific years, and in specific nonattainme nt areas. For the South Coast, the commitment is to reduce VOC emissi ons 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 discu ssion 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 EP A 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 schedul e and interim standards of the Wells Memorandum are not part of the SIP, California would not have been in Case: 09-71383 08/21/2009 Page: 57 of 74 DktEntry: 703753046 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 re ductions 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 disc retion to determine how to attain the 20 percent emissions reduction committed to in the Howekamp letter. C. EPA’s Re-Approval of the Pestic ide Element Violates the Act. On March 10, 2009, se ven months after the Ninth Circuit’s Warmderdam decision, twelve years after th e June 15, 1997 deadline to adopt regulations in the Wells Memorandum, and fo ur 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). Case: 09-71383 08/21/2009 Page: 58 of 74 DktEntry: 703753047 EPA’s approval of an unenforceable strate gy directly conflicts with the plain language of the Act and frustrates Congr ess’ fundamental purpose in requiring meaningful plans to deliver healthy ai r. Allowing the California DPR total discretion to determine whether or not it will adopt regulations endows DPR with a peculiar authority to implement the dictat es 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 la cks 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). Accordin gly, the Court sh ould 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 ENFORC EABLE TRANSPORTATION CONTROL MEASURES. The Act requires all areas of the count ry 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 specifica lly addressed in statute are allowed to deteriorate.”). States with ozone nona ttainment areas must adopt additional Case: 09-71383 08/21/2009 Page: 59 of 74 DktEntry: 703753048 pollution control measures and incorporate them into their SIPs, with the strictest additional controls mandated for those ar eas 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 th e 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 s ection 182(d)(1)(A), which declares that each state in which a severe or extreme 10 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) (emphasi s added). Stated more simply, a severe or extreme nonattainment area for ozone must adopt enforceable transportation control

10 Section 182 classifies ozone nonattainme nt 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 wh ich all or part of an Extreme Area is located shall, with respect to the Extr eme Area, make the su bmissions described under subsection (d) of this section (rela ting to Severe Areas), and shall also submit the revisions to the applicable implementation plan (including the plan items) described under this subsection.”). Case: 09-71383 08/21/2009 Page: 60 of 74 DktEntry: 703753049 measures (“TCMs”) 11 that offset the additional emissions resulting from an increase in vehicle miles traveled (“VM T”). The House Committee Report that accompanied adoption of section 182 duri ng the 1990 Clean Air Act Amendments explains how to calculate emissions increa ses attributed to VMT, stating: “The baseline for determining whether there ha s been growth in emissions due to increased VMT is the level of vehicle em issions that would occur if VMT held constant in the area.” 2 S. Comm. on En vironment & Public Works, 103rd Cong., A Legislative History of the Clean Ai r 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 hi gher 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 a nd EPA approved the plans despite this failure. ER, at 001. Be cause “Congress has directly spoken to the ... issue,” Chevron , 467 U.S. at 842-43, under the plai n language of section 182(d)(1)(A) CARB’s SIP is inadequate as a matter of law and EPA’s approva l 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 pa tterns 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; promot ing bicycling and walking; facilitating van-pools and smart shuttle s; and managing congestion to reduce emissions from idling vehicles. See generally 42 U.S.C. § 7408(f); see also ER, at 173-78. Case: 09-71383 08/21/2009 Page: 61 of 74 DktEntry: 703753050 (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 ju stify 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—incl uding tailpipe controls and alternative fuels—and forego TCMs unless net emissi ons 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 ca nnot be reconciled with the explanation of section 182(d)(1)(A) provided in the House Comm ittee Report. Id. at 04. Despite this clear evidence of Congressional intent , EPA insists in the Final Rule that section 182 is susceptible to “two alterna tive 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 vehicl e emissions, taking into account motorvehicle-related emissions controls and gr owth in VMT, will never be higher during the ozone season in one year than during th e ozone season in the year before.” ER, at 005. Case: 09-71383 08/21/2009 Page: 62 of 74 DktEntry: 703753051 explicitly cite Chevron in the Final Rule but the agency’s position is obviously cloaked in the familiar standard: the ag ency 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 requi re CARB to adopt TCMs despite the growth of VMT in South Coast is unlawfu l because the plain language of section 182(d)(1)(A) speaks directly to the issu e. The operative clause of Section 182(d)(1)(A) states in simple terms that a severe ozone nonatta inment 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 tr aveled” 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 ma tter of logic and statutory st ructure, [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)). Case: 09-71383 08/21/2009 Page: 63 of 74 DktEntry: 703753052 EPA has made no showing that Congress intended anything other than for all severe and extreme oz one nonattainment areas to adop t TCMs to offset increased emissions associate with increased VMT a nd “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 possibilitie s, 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 enfo rceable 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 grow th in emissions from VMT is part of a longer sentence that includes a second, more general mandate for states “to attain Case: 09-71383 08/21/2009 Page: 64 of 74 DktEntry: 703753053 reduction in motor vehicle emissions.” Th e 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 em issions as necessary, in combination with other em ission reduction requirements of this subpart, to comply with the requirements of subsection (b)(2)(B) and (c)(2)(B) of this section (pertaining to period ic emissions reduction requirements). 42 U.S.C. § 7511a(d)(1)(A) (em phasis added). Per the plain language of section 182, states containing a severe or extrem e nonattainment area fo r 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 appro ach, 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 th at a plan must achieve by certain dates between plan approval and the attainment date. Case: 09-71383 08/21/2009 Page: 65 of 74 DktEntry: 703753054 ... declining motor vehicle emissions each y ear through the attain ment year,” ER, at 005-06, gives effect to the second clause of the sentence but ignores the first. EPA’s reading thus violates the “cardin al 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 stat ute 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 constr uctions that render words meaningless.”)

. Indeed, as this Court has opined previ ously, “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 interp retation of section 182 renders the statute’s strict, specific requirement to adopt TCMs to offs et VMTs superfluous and insignificant and ascribes the two cl auses 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 flaw ed interpretation, must be vacated and remanded. Case: 09-71383 08/21/2009 Page: 66 of 74 DktEntry: 703753055 In the Final Rule EPA attempts to invoke statutory context in support of its toothless interpretation of section 182, argui ng that a strict requirement for severe ozone nonattainment areas to offset grow th in VMTs could result in the imposition of “draconian TCM’s [sic] such as no driv e restrictions.” ER, at 004. According to EPA, the agency d oubts 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 a nd self defeating. First, the suggestion that TCMs are necessarily “drac onian” is false. The District initially proposed to adopt several modest but e ffective TCMs to co mply 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, Congr ess was unquestionably aware of the potential consequences of requiring a doption of TCMs, as Congress itself prescribed the list of TCMs that stat es could implement to offset VMT. See 42 U.S.C. 7511a(d)(1)(A) (“The State shall c onsider measures specified in section 7408(f) of this title, and choose from amo ng and implement such measures as necessary to demonstrate attainment with the national ambient air quality

14 CARB’s SIP revision initiall y 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 popul arize alternatives to single occupancy vehicle commute trips. See ER, at 178-79. Case: 09-71383 08/21/2009 Page: 67 of 74 DktEntry: 703753056 standards; ...”). 15 EPA concedes that Congress established “intricate planning requirements ... to bring areas toward atta inment of the ozone standard,” ER, at 005-06, but EPA’s interpretation of secti on 182(d)(1)(A) glosses over the specific, intricate requirements of the statute. Th e 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 H ouse Committee Report on section 182 states unequivocally: “The baseline for determin ing whether there has been growth in emissions due to increased VMT is the leve l of vehicle emissions that would occur if VMT held constant in the area.” 2 Le gis. Hist. at 3266 [AD, at 81]. EPA does not dispute the House Comm ittee Report but avers that it isn’t persuaded because “[t]here is no further legisl ative history on this aspect of the provision.” ER, at 004. EPA is completely mistaken. Fo r example, many months after the House Committee Report, during the House de bate on the conference report,

15 CAA § 108(f)(1)(A) lists 26 TCMs, in cluding “programs for improved public transit,” “restrictions of certain roads or lanes to ... high occupancy vehicles,” “trip reduction ordinances,” “programs ... fo r the convenience and protection of bicyclists,” and “programs to control ex tended idling of vehicles.” 42 U.S.C. § 7408(f). Case: 09-71383 08/21/2009 Page: 68 of 74 DktEntry: 703753057 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 nonatta inment areas[] makes it clear this is a requirement on the States in revising thei r State Implementation Plans.” 1 Legis. Hist. at 1304 [AD, at 76] (statement of Rep. Manton on C onference 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 simi larly 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 Mant on’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 di rectly and independently from other factors affecting automobile emissions a nd ozone levels becaus e, as Congress was aware at the time of s ection 182’s adoption, incr eases in VMT undermine the Case: 09-71383 08/21/2009 Page: 69 of 74 DktEntry: 703753058 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 C onference Report). Senator Lieberman expressed the same sen timent, 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 st atute 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 Case: 09-71383 08/21/2009 Page: 70 of 74 DktEntry: 703753059 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 plai n statutory language and clear statutory structure and verified by direc tly relevant legislative histor y. When “the intent of Congress is clear, that is the end of the ma tter; 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 enforceab le TCMs to offset grow th 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”).
// // Case: 09-71383 08/21/2009 Page: 71 of 74 DktEntry: 703753060 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 Bienes tar De Earlimart, and Community Children’s Advocates Against Pesticide Posioning Case: 09-71383 08/21/2009 Page: 72 of 74 DktEntry: 703753061 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 typefa ce 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 Wo rd’s calculation feature to calculate the word limit.

August 21, 2009 /s Adriano Martinez Adriano Martinez Case: 09-71383 08/21/2009 Page: 73 of 74 DktEntry: 703753062 PROOF OF SERVICE I am employed in the Count y of Los Angeles, State of California. I am over the age of 18 and not a party to the with in action. My business address is: 1314 2 nd Street, Santa Monica, CA 90401. On August 21, 2009 I electronically file d 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 accomplis hed by the appellate CM/ECF system. I also certify that those listed below who ar e 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 perj ury 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 memb er of the bar of this court at whose direc tion the service was made. Executed on August 21, 2009, at Santa Monica, California.

/s Alana Karran Alana Karran Case: 09-71383 08/21/2009 Page: 74 of 74 DktEntry: 7037530