FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EL COMITÉ PARA EL BIENESTAR DE 

EARLIMART, an unincorporated

association; COMMUNITY &

CHILDREN’S ADVOCATES AGAINST

PESTICIDE POISONING, a California

non-profit corporation WISHTOYO

FOUNDATION, a California nonprofit corporation VENTURA

COASTKEEPER, a California nonprofit corporation ASSOCIATION OF

IRRITATED RESIDENTS, an No. 06-16000

unincorporated association,  D.C. No. Plaintiffs-Appellees, CV-04-00882-LKK

and

AIR COALITION TEAM,

Intervenor,

v.

MARY-ANN WARMERDAM,* in her

official capacity as Director

Department of Pesticide

Regulation; LINDA ADAMS, in her

official capacity as Secretary, CA 

*Mary-Ann Warmerdam is substituted for Paul Heliker, her predecessor

as Director of the CA Department of Pesticide Regulation; Linda Adams

is substituted for Terry Tamminen, her predecessor as Secretary, CA Environmental Protection Agency; James Goldstene is substituted for Catherine Witherspoon, his predecessor as Executive Officer, CA Air Resources

Board; Mary Nichols is substituted for Alan Lloyd, her predecessor as

Chair, CA Air Resources Board. See Fed. R. App. P. 43(c)(2). The following new members of the California Air Resources Board are substituted

for the previous members: Daniel Sperling, Jerry Hill, Doreen D’Adamo,

Barbara Riordan, John R. Balmes, Lydia Kennard, Sandra Berg, Ron Roberts, John G. Telles and Ronald O. Loveridge. 

11179
Environmental Protection Agency; 

JAMES GOLDSTENE, in his official

capacity as Executive Officer, CA

Air Resources Board; MARY

NICHOLS, in her official capacity as

Chair, CA Air Resources Board;

WILLIAM BURKE, in his official

capacity as Member, CA Air

Resources Board; CA JOSEPH

CALHOUN, in his official capacity

as Member, CA Air Resources

Board; DORENE D’ADAMO, in her

official capacity as Member, CA

Air Resources Board; MARK

DESAULNIER, in his official capacity

as Member, CA Air Resources

Board; C. HUGH FRIEDMAN, in his  official capacity as Member, CA

Air Resources Board; MATTHEW

MCKINNON, in his official capacity

as Member, CA Air Resources

Board; BARBARA PATRICK, in her

official capacity as Member, CA

Air Resources Board; BARBARA

RIORDAN, in her official capacity

as Member, CA Air Resources

Board; RON ROBERTS, in his

official capacity as Member, CA

Air Resources Board; ROBERT F.

SAWYER, Chair, CA Air Resources

Board; WILLIAM F. FRIEDMAN, in

his official capacity as Member,

CA Air Resources Board,

Defendants-Appellants. 

11180 EL COMITÉ v. WARMERDAM
EL COMITÉ PARA EL BIENESTAR DE 

EARLIMART, an unincorporated

association; COMMUNITY &

CHILDREN’S ADVOCATES AGAINST

PESTICIDE POISONING, a California

non-profit corporation WISHTOYO

FOUNDATION, a California nonprofit corporation VENTURA

COASTKEEPER, a California nonprofit corporation ASSOCIATION OF

IRRITATED RESIDENTS, an

unincorporated association,

Plaintiffs-Appellees,

AIR COALITION TEAM, No. 06-16131

Intervenor-Appellant, D.C. No. 

v. CV-04-00882-LKK

MARY-ANN WARMERDAM, in her OPINION

official capacity as Director

Department of Pesticide

Regulation; LINDA ADAMS, in her

official capacity as Secretary, CA

Environmental Protection Agency;

JAMES GOLDSTENE, in his official

capacity as Executive Officer, Air

Resources Board; MARY NICHOLS,

in her official capacity as Chair,

CA Air Resources Board; WILLIAM

BURKE, in his official capacity as

Member, CA Air Resources

Board; JOSEPH CALHOUN, in his 

EL COMITÉ v. WARMERDAM 11181
official capacity as Member, CA 

Air Resources Board; DORENE

D’ADAMO, in her official capacity

as Member, CA Air Resources

Board; MARK DESAULNIER, in his

official capacity as Member, CA

Air Resources Board; C. HUGH

FRIEDMAN, in his official capacity

as Member, CA Air Resources

Board; MATTHEW MCKINNON, in

his official capacity as Member,

CA Air Resources Board;

BARBARA PATRICK, in her official

capacity as Member, CA Air

Resources Board; BARBARA

RIORDAN, in her official capacity 

as Member, CA Air Resources

Board; RON ROBERTS, in his

official capacity as Member, CA

Air Resources Board,

Defendants,

WILLIAM F. FRIEDMAN, in his

official capacity as Member, Air

Resources Board,

Defendant,

and

ROBERT F. SAWYER, Chair, CA Air

Resources Board,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, District Judge, Presiding

11182 EL COMITÉ v. WARMERDAM
Argued and Submitted

May 12, 2008—San Francisco, California

Filed August 20, 2008

Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,

and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

EL COMITÉ v. WARMERDAM 11183
COUNSEL

Edmund G. Brown, Jr., Attorney General of the State of California, James Humes, Chief Deputy Attorney General, Tom

Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, John Davidson,

Supervising Deputy Attorney General, Michael W. Neville,

Deputy Attorney General of California, San Francisco, California, for the defendants-appellants. 

Jan L. Kahn and Rissa A. Stuart, Hanford, California, for

appellant-intervenors. 

Brent Newell and Luke W. Cole, Center for Race, Poverty &

the Environment, San Francisco, California, for the plaintiffsappellees.

OPINION

McKEOWN, Circuit Judge: 

This case involves a challenge under § 304 of the Clean Air

Act (“CAA”), see 42 U.S.C. § 7604(a), known as the citizen

suit provision. A coalition of community organizations (“El

Comité”) brought suit against California state officials

EL COMITÉ v. WARMERDAM 11185
(“California”) responsible for designing and implementing a

state air quality plan. The complicated approval process for

the State Implementation Plan (“SIP”) required much backand-forth between California and the Environmental Protection Agency (“EPA”). El Comité takes issue with both the

process by which California obtained EPA approval of the

SIP and the final outcome of that approval process. In particular, El Comité argues that California violated federal law by

failing to adhere to the SIP approved by the EPA, which it

argues required California to implement additional regulations

in five areas where air quality standards for reducing harmful

emissions have not been met. California went astray, according to El Comité, by using the wrong data to calculate the

baseline for its emission standards and by ignoring deadlines

that were intended to be incorporated into EPA’s final

approval of the SIP. El Comité’s claim turns on determination

of what documents were incorporated into the final SIP and

the EPA rule, and interpretation of what the SIP, and hence

federal law, requires of California. 

The district court concluded that it did not have jurisdiction

to review El Comité’s claim regarding the data and methodology used by California to calculate the baseline for emissions

standards. The court agreed, however, with El Comité’s

expansive interpretation of the SIP, and ordered relief based

on that interpretation. That relief was also built on the methodology El Comité advocated for use in calculating the baseline — the same methodology the district court had held it

was without jurisdiction to review. As it carefully worked

through the parties’ labyrinthine administrative law arguments, the court acknowledged that its rulings were potentially incongruous. We agree. In our view, the district court

ultimately exceeded its jurisdiction. Because § 304 of the

CAA provides jurisdiction only to enforce an “emission standard or limitation,” and because the challenged conduct did

not implicate such a standard or limitation, the court was

without jurisdiction to order a remedy. 

11186 EL COMITÉ v. WARMERDAM
I. FACTUAL AND PROCEDURAL BACKGROUND

A. THE SIP PROCESS UNDER THE CLEAN AIR ACT

To protect public health and welfare, the CAA requires the

EPA to establish National Ambient Air Quality Standards

(“NAAQS”) for certain air pollutants. 42 U.S.C. § 7409. The

Act places much of its enforcement burden on the states,

which are required to submit SIPs that show how states will

attain the standards for major air pollutants. Id. § 7410.

Before a SIP becomes effective, the EPA must determine that

it meets the CAA’s requirements. Id. § 7410(k)(3). Once the

EPA approves a SIP, it becomes federal law. Safe Air for

Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir. 2007); Bayview Hunters Point Cmty. Advocates v. Metro. Transp.

Comm’n, 366 F.3d 692, 695 (9th Cir. 2004); 

Each state is required to designate the areas within its

boundaries where the air quality meets the NAAQS

(“attainment areas”), and those where the air quality fails to

meet the NAAQS (“nonattainment areas”) for each pollutant

targeted for emissions reductions. 42 U.S.C. § 7407(d)(1)(A).

SIPs must include an attainment demonstration, a technical

analysis that through air quality modeling demonstrates that

the “control measures” proposed by the SIP will ensure that

these nonattainment areas attain the NAAQS by the applicable deadline. Id. § 7502(c)(1). Plan provisions for nonattainment areas must contain “enforceable emission limitations,

and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and

auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to

provide for attainment” by the deadline. Id. § 7502(c)(6); see

also Sierra Club v. EPA, 356 F.3d 296, 299 (D.C. Cir. 2004).

EL COMITÉ v. WARMERDAM 11187
B. CALIFORNIA’S 1994 SIP PROCESS AND EPA REVIEW

AND APPROVAL

Under threat of an EPA takeover of the state’s air quality

planning, the California Air Resources Board (“CARB”), the

state agency responsible for preparing and submitting a SIP

for EPA approval, submitted the 1994 SIP. See Cal. Health &

Safety Code § 39602. The SIP includes a subsection (known

as “the Pesticide Element”) prepared by the California

Department of Pesticide Regulation (“DPR”) that proposes

strategies for reducing volatile organic compound (“VOC”)1

emissions from agricultural and commercial structural pesticides. 

The Pesticide Element set a “goal” of reducing, by 2005,

pesticide-related emissions from the 1990 baseline by a “maximum of 20 percent,” and provided that “a decision whether

additional regulatory measures to ensure that reductions in

pesticidal VOC emissions are achieved will be made by

1997” (emphasis added). A timeline at the end of the Pesticide Element states that the decision on regulations will be

made by November 1997, with the implementation of the plan

to occur by December 1998. The plan’s summary also states

that by December 1998, “[i]mplementation of additional regulatory measures, if necessary, will take place to ensure that

targeted pesticidal VOC reductions occur” (emphasis added).

After California submitted the Pesticide Element, considerable discussion took place through correspondence between

David Howekamp, Director of EPA Region IX Air Division,

and DPR Director James Wells. Howekamp expressed concern that the proposed SIP was not complete enough for EPA

review. Specifically, EPA was concerned that the SIP lacked

specific emission reduction goals specified by date and nonattainment area, and that the SIP did not propose a firm dead1VOCs mix with oxides of nitrogen (NOx) in heat and sunlight to form

ground-level ozone, i.e., smog. 

11188 EL COMITÉ v. WARMERDAM
line by which California committed to deciding whether to

adopt new emissions regulations for several nonattainment

areas. To fill these gaps, Howekamp proposed that California

“explicitly” commit to a decision deadline of June 15, 1997,

and suggested emission reduction goals by nonattainment

area. 

California capitulated to EPA’s requests in a May 11, 1995,

letter from James Boyd, then executive officer for CARB, to

the EPA, stating that he was “transmit[ting] a clarification” of

the Pesticide Element of the 1994 SIP, and noting that the

“enclosed letter from DPR clarifies that in the SIP, California

has committed to adopt and submit to U.S. EPA by June 15,

1997, any regulations necessary to achieve the emission

reductions from pesticides specified in the letter.” Letter from

Boyd to EPA, May 11, 1995 (emphasis added). The enclosed

“letter” was a May 9, 1995, memorandum from Wells to

Boyd (“the Wells Memorandum”). The Wells Memorandum

stated the same commitment referenced in Boyd’s cover letter

and included a table outlining interim reduction goals for each

nonattainment area. 

When the EPA issued its Notice of Proposed Rulemaking,

the summary of the Proposed Rules identified the Wells

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

the pesticide commitment” and stated that the “clarification is

considered part of California’s SIP.” Approval and Promulgation of Implementation Plans; California—Ozone, 61 Fed.

Reg. 10920, 10935 (March 18, 1996) (to be codified at 40

C.F.R. pt. 52) (“Proposed Rules”). Following the close of the

public comment period, but before the Final Rule issued,

CARB sent a letter dated June 13, 1996 to Howekamp

(“Howekamp letter”) seeking to clarify and correct various

aspects of the SIP, in particular, to delete the table from the

Wells letter labeled “Reductions from 1990 Pesticide Emissions Baselines.” This deletion effectively erased any record

indicating the interim target reductions for the nonattainment

areas. Following this modification, the EPA approved the

EL COMITÉ v. WARMERDAM 11189
1994 SIP on January 8, 1997. See Approval and Promulgation

of Implementation Plans; California—Ozone,62 Fed. Reg.

1150, 1186-87; 40 C.F.R. § 52.220(c)(204)(i)(A)(6) (1997). 

In February, four months before the June 15, 1997, deadline for deciding whether to adopt regulations, a DPR scientist

called into question CARB’s methodology— “back-casting,”

or extrapolating backwards from 1991 data— for calculating

the 1990 baseline inventory. Back-casting is the methodology

stated in the Pesticide Element. The scientist proposed instead

calculating the 1990 baseline with 1990 data from the Pesticide Use Report (“PUR”). Although there is no contemporaneous evidence of the decision to switch methodologies, a

public workshop package released by DPR in February 1998

confirms that the department adopted the scientist’s approach

of using the 1990 PUR data. 

By the time the June 15 deadline arrived, California had

decided it was unnecessary to adopt additional regulations.

This decision is documented in a February 1998 letter from

Wells in response to a Notice of Intent to Sue under the Clean

Air Act sent by the Environmental Defense Center. Wells’s

letter states that 

[o]ur April 1997 analysis of data through 1995

showed that all nonattainment areas (NAAs) were

meeting annual interim goals, and that four out of

five were already meeting the final 2005 year goals

. . . . Therefore, we determined in April 1997 that no

regulations were necessary to reduce VOC emissions

by specific percentages. Consequently, no regulations were adopted and submitted to U.S. EPA in

June 1997. 

C. THE CITIZEN SUIT AND DISTRICT COURT ORDERS

El Comité filed a citizen suit under § 304 of the Clean Air

Act, 42 U.S.C. § 7604(a), to enforce the 1994 SIP. El Com11190 EL COMITÉ v. WARMERDAM
ité’s amended complaint includes two claims. The first count

alleges that various California agencies “violated an emission

standard or limitation by failing to adopt regulations to reduce

pesticide-related VOC emissions by June 15, 1997,” as

required by the Wells Memorandum’s clarification of the

1994 SIP. The second count alleges that, in using the 1990

PUR data rather than the 1991 back-cast data, the state violated an emission standard or limitation because it manipulated the 1990 baseline to avoid the obligation to adopt new

regulations by June 15, 1997. 

The district court issued an order granting El Comité’s

summary judgment motion on the first count (holding that

California failed to adopt regulations in 1997), and granting

California’s motion on the second count (holding that the

court did not have jurisdiction over the claim that California

violated the SIP by use of the wrong methodology to calculate

the baseline data), and denying the parties’ motions in all

other respects. El Comité Para el Bienestar de Earlimart v.

Helliker, 416 F. Supp. 2d 912, 934 (E.D. Cal. 2006). The district court judge, somewhat prescient about the issues before

us on appeal, found himself “bemused by the result,” but

nonetheless stated, “the result, while ironic, is not inconsistent.” Id. at 916 n.5. 

The court issued a second order on remedies (“Remedies

Order”) providing injunctive and declaratory relief to El

Comité. The Remedies Order requires California to “propose,

adopt, and submit to EPA for approval and implement regulations no later than January 1, 2008, to achieve the emission

reduction goals as set forth in the May 9, 1995, memorandum

from James Wells to James Boyd,” and to file a status report

as to its progress. 

The Remedies Order also declared that the defendants “are

in violation” of the CAA and the 1994 SIP by “failing to utilize the 1990 PUR data as set forth in the 1994 SIP and by

failing to adopt ‘enforceable control measures’ ” as required

EL COMITÉ v. WARMERDAM 11191
by the CAA. In reaching this conclusion, the district court

reiterated its earlier conclusion that a SIP must have enforceable standards to be valid, and while the court had not explicitly held that California failed to comply with the SIP by

virtue of the failure to adopt and implement regulations, the

“record undoubtedly reflects that [California] failed to meet

the promises it made in the SIP, including failing to use the

correct PUR data.” The court reasoned, “[b]y virtue of [the]

failure to use the correct PUR data, the [California] defendants consequently were unable to adopt proper ‘enforceable

control measures,’ as they must, under the Clean Air Act.”

California appealed the summary judgment in favor of El

Comité on the first claim and the Remedies Order. 

II. ANALYSIS

Despite a complicated factual background, the dispute here

is not factual, but rather, is a matter of regulatory interpretation and administrative law principles. Our review is de novo.

See Arakaki v. Haw., 314 F.3d 1091, 1094 (9th Cir. 2002). To

determine whether California violated the SIP, and whether

the remedies imposed by the district court are appropriate, we

first address the scope of the Final SIP. On this issue, the parties hotly contest the significance of the Wells Memorandum,

the Howekamp letter, and a declaration by Howekamp prepared for this litigation.2

El Comité argues that we cannot consider the revisions to

the SIP contained in the Howekamp letter because they were

submitted by California to the EPA after the public comment

period had closed, and since no other revision rescinded the

Wells Memorandum, that memorandum and the Howekamp

2The two references to Howekamp documents are easily confused. The

so-called letter to Howekamp was actually authored by CARB on June 13,

1996, but addressed to Howekamp. This document is referred to as “the

Howekamp letter.” Howekamp also authored the Howekamp declaration

as part of this litigation, well after leaving his position at EPA Region IX.

11192 EL COMITÉ v. WARMERDAM
declaration reflect EPA’s understanding of California’s commitments under the SIP, i.e., its administrative intent in

approving the SIP. California argues that the Final SIP

excludes the Wells Memorandum, and under principles of

administrative law, we are precluded from considering administrative intent because the regulation is unambiguous. California also questions the validity of Howekamp’s declaration,

which it describes as an “ex post facto declaration” by a “private citizen.” 

Because we conclude that the schedule and interim standards of the Wells Memorandum are not part of the SIP, California would not have been in violation of the SIP even if it

had made no decision about the need for further regulations.

And significantly, any such decision would have been discretionary by the language of the SIP (“a decision whether additional regulatory measures to ensure that reductions in

pesticidal VOC emissions are achieved will be made by

1997” (emphasis added)). Nonetheless, El Comité argues that

by using the 1990 data rather than the 1991 back-cast data,

California violated the SIP by failing to adopt “enforceable

control measures.” The district court held—and we agree—

that the baseline methodology is not “an emission standard or

limitation” that falls within the district court’s jurisdiction

under § 304 of the CAA, 42 U.S.C. § 7604(a). It necessarily

follows that the district court also lacked jurisdiction to

impose remedies based on the alleged deficiency in the baseline methodology. 

A. THE SCOPE OF THE SIP

The parties frame the key issue as a debate over whether

the Wells Memorandum is included in the Final SIP. The

heart of El Comité’s case is cut out if the memorandum is not

part of the Final SIP. On the other hand, if the memorandum,

with its detailed interim requirements and fixed date of June

15, 1997, is part of an enforceable SIP, then the case is cast

in a very different light. The district court stated that “neither

EL COMITÉ v. WARMERDAM 11193
the statute, the regulatory process, nor the record provide a

clear resolution to the problem.” We think the issue is not as

open-ended as the district court portrays it because the language of the final rule is not ambiguous. 

California’s arguments on this point are persuasive. It

argues that the district court erred in its analysis by ignoring

40 C.F.R. § 52.220, which catalogs revisions to the California

SIP but which contains no reference to the Wells Memorandum. See 40 C.F.R. § 52.02(f) (“Revisions to applicable plans

will be included in this part when approved or promulgated by

the Administrator.”).3 In general, “[t]he promulgated provisions, together with any portions of a State plan approved by

the Administrator, constitute the applicable plan for purposes

of the Act.” 40 C.F.R. 52.02(b). Instead, the court relied on

two other sources that have little legal traction: (1) certain language in the preamble published in the Notices of Proposed

and Final Rulemaking in the Federal Register (“Proposed

Rule” and “Final Rule,” respectively);4 and (2) Howekamp’s

declaration. 

3All documents that EPA incorporates into the SIP under § 52.220 must

be filed with the Office of the Federal Register and approved for incorporation by reference by the Director of the Federal Register. See 40 C.F.R.

§ 52.02(d). Such documents must be available at three separate locations:

the National Archives and Records Administration; EPA’s Office of Air

and Radiation Docket Information Center in Washington, D.C.; and the

appropriate EPA regional office. Although not definitive, it bears noting

that California filed a Freedom of Information Act request for the EPA to

produce all documents that “create, clarify, revise or amend” the DPR’s

obligations under the SIP that were held at any of these locations. EPA’s

response produced the 1994 Pesticide Element and the 1996 Howekamp

letter, but not the Wells Memorandum. 

4California points out that the operative language in the Federal Register, whereby the EPA exercises its delegated legislative rulemaking

authority, is the language that amends the Code of Federal Regulations

(“Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows”), and that all text prior to this reference is preamble.

See 62 Fed. Reg. at 1186. 

11194 EL COMITÉ v. WARMERDAM
1. The Preamble

[1] Regarding the first source, the preamble language

should not be considered unless the regulation itself is ambiguous. See Wards Cove Packing Corp. v. Nat’l Marine Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir. 2002) (“[T]he plain

meaning of a regulation governs and deference to an agency’s

interpretation of its regulation is warranted only when the regulation’s language is ambiguous.” (citing Christensen v. Harris County, 529 U.S. 576, 588 (2000)). The D.C. Circuit took

a similar approach in Wyoming Outdoor Council v. United

States Forest Service, 165 F.3d 43, 53 (D.C. Cir. 1999),

explaining that “in the analogous context of statutory construction . . . the language in the preamble of a statute is ‘not

an operative part of the statute . . . .’ ” That is, unlike the statute’s operative part, the preamble does not “prescribe rights

and duties and otherwise declare the legislative will,” nor

does it “enlarge or confer powers on administrative agencies

or officers,” but it nevertheless “may aid in achieving a general understanding of the statute.” Id. (internal quotation

marks omitted). By analogy, the “principles governing interpretation of the preamble of a regulation are no different” than

those governing statutory interpretation, and thus, “[w]here

the enacting or operative parts of a statute are unambiguous,

the meaning of the statute cannot be controlled by the language in the preamble.” Id.

[2] El Comité assumes the regulatory language is ambiguous because of the controversy over the Wells Memorandum

—that the Proposed Rules referenced the document as a revision, but the Final Rule excluded it among the official revisions approved by EPA. In doing so, El Comité offers a

circular argument and glosses over the framework for regulatory interpretation, emphasizing the language of the preamble

above all else. And even if the regulations were ambiguous

and the preamble properly considered as evidence of context

or intent, the preamble to the Final Rule contains a summary

EL COMITÉ v. WARMERDAM 11195
of California’s submissions by date of submission that clearly

does not include the Wells Memorandum.5

El Comité also misapplies the proposition in Safe Air that

a court interprets a SIP based on its “plain meaning when

such a meaning is apparent, not absurd, and not contradicted

by the manifest intent of EPA, as expressed in the promulgating documents available to the public.” 475 F.3d at 1108

(emphasis added). Invoking Safe Air, El Comité looks past the

plain meaning of the Final Rule, which excludes the Wells

Memorandum and any reference to it, and focuses instead on

the proposed rule’s incorporation of the Wells Memorandum

as proof of EPA’s administrative intent. 

[3] El Comité’s reliance on the non-final rule ignores the

bedrock principle that we look to the plain meaning of the

final rule as promulgated. See Bayview, 366 F.3d at 698 (“A

regulation should be construed to give effect to the natural

and plain meaning of its words”) (citation omitted).). As part

of the rule making process, on June 13, 1996, California

wrote to Howekamp at EPA, providing information and cor5The introduction to the summary of the preamble of the Final Rule

states: 

EPA is approving revisions to the California State Implementation Plan (SIP) for ozone for 6 nonattainment areas . . . . In addition, EPA is approving specific local and statewide air pollution

control measures . . . . The California Air Resources Board

(CARB) submitted these SIP revisions to EPA on November 14,

1994, November 15, 1994, December 28, 1994, December 29,

1994, February 7, 1995, March 30, 1995, January 22, 1996, April

4, 1996, May 17, 1996, June 13, 1996 (Howekamp Letter), July

10, 1996, and July 12, 1996. 

EPA is approving these revisions to the California SIP under

provisions of the Clean Air Act (CAA) regarding EPA action on

SIP submittals for nonattainment areas. 

62 Fed. Reg. at 1150. Notably absent from this list of approved SIP revisions is CARB’s transmission of the Wells Memorandum on May 11,

1995. 

11196 EL COMITÉ v. WARMERDAM
rections to the SIP. The letter requested that EPA excise the

interim goals table in the Wells Memorandum. The Final SIP

lists the June 1996 letter but does not reference the Wells

Memorandum other than in the preamble’s summary, and

there the table is excised according to the instructions in the

Howekamp letter. Thus the Howekamp letter became the final

word in the saga of the SIP. 

The difficulty with the Howekamp letter, El Comité suggests, is that it was submitted over a month after the public

comment period had closed and thus cannot be part of the SIP

because EPA’s administrative intent to modify the 1994 SIP

was not made available for public consideration and comment. See Safe Air, 475 F.3d at 1105-06 (“[T]he notice

requirements of the APA, [require] that some indication of the

regulatory intent that overcomes plain language must be referenced in the published notices that accompanied the rulemaking process. Otherwise, interested parties would not have the

meaningful opportunity to comment on proposed regulations

that the APA contemplates, because they would have had no

way of knowing what was actually proposed” (citations omitted).). 

El Comité’s focus on administrative intent puts the cart

before the horse. We are justified in considering administrative intent only if the regulation is ambiguous, as was arguably the case in Safe Air. The difficulty with relying on Safe

Air in this case is that in Safe Air we did not address which

documents were and were not part of the SIP—the central

issue that concerns us here. Rather, Safe Air involved interpretation of a SIP whose contents were already established. It

is also significant that Safe Air involved a challenge under

§ 307(b)(1) to the propriety of a rulemaking proceeding, not

a challenge to an emission standard under § 304. 

[4] El Comité’s argument takes us in a direction we cannot

follow because it implicates a question over which we lack

jurisdiction: whether, in revising the SIP along the lines

EL COMITÉ v. WARMERDAM 11197
requested by California and allowing a modification of the

SIP after the close of the public comment period, the EPA

violated the Administrative Procedure Act. See generally

Ober v. EPA, 84 F.3d 304, 313 (9th Cir. 1996) (“An agency

may use supplementary data, unavailable during the notice

and comment period, that expands on and confirms information contained in the proposed rulemaking and addresses

alleged deficiencies in the pre-existing data, so long as no

prejudice is shown” (quoting Idaho Farm Bureau Fed’n v.

Babbitt, 58 F.3d 1392, 1402 (9th Cir. 1995)) (emphasis

added).). That question is the quintessential administrative

challenge under a petition to review a final decision of the

EPA (see 42 U.S.C. § 7607(b)(1)), such as was at issue in

Safe Air, 475 F.3d at 1103. It is one we do not have jurisdiction to decide in this appeal, however, because this case was

filed under § 304, 42 U.S.C. § 7604(a). 

2. The Howekamp Declaration

As part of its analysis of intent and whether the Wells

Memorandum was incorporated into the final SIP, the district

court looked to Howekamp’s Declaration. Significantly, this

declaration was offered not by an EPA representative but by

a former employee some years after the fact. We need not

consider the exact scope and admissibility of such intent evidence because, in any event, it cannot override the plain language of the regulation or EPA’s contemporaneous statements

published in the Federal Register. 

[5] In sum, we conclude that the district court erred in holding that the Wells Memorandum was incorporated into the

SIP. 

B. THE BACK-CAST METHODOLOGY ESTABLISHING THE

BASELINE INVENTORY IS NOT AN EMISSION STANDARD

OR LIMITATION

In the district court, El Comité challenged California’s use

of the 1990 data instead of the 1991 back-cast data. Califor11198 EL COMITÉ v. WARMERDAM
nia’s use of the improper methodology, El Comité argued,

made it impossible for the state to assess whether new regulations were needed, thereby rendering unenforceable the commitment to adopt regulations, if necessary, by June 15, 1997,

and making the entire SIP invalid under the CAA. After analyzing the nature of the baseline inventory, the district court

granted summary judgment in favor of California: “[El Comité’s] second claim fails because a ‘baseline inventory’ is not

an ‘emission standard or limitation’ subject to challenge under

the Clean Air Act.” El Comité, 416 F. Supp. 2d at 927. The

district court found that the baseline inventory is not an emission standard or limitation under the statute because it does

not “limit[ ] the quantity, rate, or concentration of emissions

of air pollutants on a continuous basis,” and does not “relat[e]

to the operation or maintenance of a source to assure continuous emission reduction.” 

Although El Comité did not appeal this issue, its arguments

nonetheless implicitly quarrel with this finding. Citing Bayview, El Comité attempts to skirt the gap in our jurisdiction

by shifting its argument on appeal, claiming that if the SIP is

understood to impose an obligation to reduce emissions in

nonattainment areas, then the baseline inventory (and by

extension, the way it is calculated) are necessary elements of

this enforceable commitment. This argument attempts to

transform the baseline inventory into an enforceable emission

standard or limitation by bootstrapping it to the commitment

to decide to adopt regulations, if necessary. While we

acknowledge that the baseline is a critical foundation, this

does not change our view that neither the baseline nor the

methodology qualify as independently enforceable aspects of

the SIP. Bayview is not to the contrary. See Bayview, 366 F.3d

at 703 (holding that “Bayview’s citizen suit represents an

inappropriate attempt to alter [the] explicit provisions” of a

SIP). We emphasize this point because it bears on the issue

of remedies.

EL COMITÉ v. WARMERDAM 11199
C. THE DISTRICT COURT LACKED JURISDICTION TO ISSUE A

REMEDIES ORDER

[6] The district court declared that California violated the

CAA and the California SIP by “failing to adopt ‘enforceable

control measures’ as required by the [CAA].” Remedies

Order at 2; see also Remedies Order at 3 n.2 (“[B]y virtue of

their failure to use the correct PUR data, defendants consequently were unable to adopt proper ‘enforceable control

measures,’ as they must, under the Clean Air Act.”). Because

neither the Wells Memorandum nor the baseline data provide

an enforceable emission standard or limitation, no relief is

available to El Comité under § 304 of the CAA, 42 U.S.C.

§ 7604(a). Nor would the district court have jurisdiction to

hold, in effect, that the EPA improperly approved an invalid

SIP because it lacked enforceable emission standards. That

challenge, and any related relief, falls outside the purview of

the district court and would have to be brought as a petition

to review the EPA’s rulemaking process. See 42 U.S.C.

§ 7607(b)(1). 

[7] We reverse the summary judgment in favor of El

Comité, vacate the Remedies Order, and remand with orders

to dismiss the case for lack of jurisdiction. 

REVERSED AND REMANDED.

11200 EL COMITÉ v. WARMERDAM