e-Bulletin: 9th Circuit Overturns Challenge to California’s State Implementation Plan
August 27, 2008On August 20, 2008, the 9th Circuit Court of Appeals issued its long-awaited decision in El Comite Para El Bienestar de Earlimart v. Warmerdam (Nos. 06-16000, 06-16131) regarding California’s 1994 State Implementation Plan (“SIP”), a state air quality plan adopted pursuant to the federal Clean Air Act (“CAA”) detailing how the State of California (the “State”) plans to attain the National Ambient Air Quality Standards. The 9th Circuit reversed the district court’s holding requiring the State to implement certain stringent air quality regulations as part of the SIP.
This case arises from a 2004 lawsuit brought by El Comite Para El Bienestar de Earlimart and other citizen groups (collectively, “El Comite”) against State officials under Section 304 of the CAA. Section 304 provides jurisdiction to enforce an emission standard or limitation. The lawsuit challenged the process by which the Environmental Protection Agency (“EPA”) approved the State’s SIP and the final outcome of the approval process.
El Comite made two basic claims in their lawsuit. First, they claimed that the State violated the SIP by failing to implement regulations to reduce pesticide related emissions by June 15, 1997 . El Comite argued that the additional regulations were incorporated into the SIP by a memorandum. The State argued that the memorandum was not included in the Final SIP. Second, El Comite claimed that the State violated an emission standard by using the wrong methodology to calculate the baseline.
The lower court held in El Comite’s favor and issued summary judgment on the first issue finding that the State failed to properly adopt regulations as required by the memorandum, but found that it did not have jurisdiction over the second claim that the State used the wrong baseline. Nonetheless, the lower court used El Comite’s preferred methodology for calculating the baseline to issue a remedies order requiring the State to implement certain air quality regulations by January 1, 2008.
On appeal, the 9th Circuit ruled in favor of the State and vacated the lower court’s summary judgment and remedies order. The Court of Appeals held that the lower court “ultimately exceeded its jurisdiction” because the lawsuit was brought under Section 304 of the CAA which provides jurisdiction “only to enforce an emission standard or limitation.”
Specifically, the 9th Circuit found that the additional air quality regulations that El Comite alleged the State failed to follow were not actually included in the Final SIP, thus there was no issue regarding an emission standard for the Court to decide. Instead, the Court suggested that El Comite should have challenged the failure to include the memorandum and the propriety of the SIP adoption procedure under the Administrative Procedures Act or under another section of the CAA. But, since El Comite filed its lawsuit under Section 304 of the CAA, the Court held that it lacked jurisdiction to address the scope of the SIP.
With respect to the baseline issue, the 9th Circuit held that while “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.” The Court also stated, “it necessarily follows that the district court also lacked jurisdiction to impose remedies based on the alleged deficiencies in the baseline methodology.”
While this decision upholds the legality of the State’s 1994 SIP and consequently supports the use of the 1994 SIP in environmental documents prepared by State agencies, it is important to note that the 9th Circuit Court of Appeals was careful not to comment on the validity of the scope of the Final SIP or the propriety of the SIP adoption proceeding. El Comite’s case ultimately failed on procedural grounds, which suggests that the holding may have been different if it were decided under different circumstances or had been challenged under a different statutory provision. As the 9th Circuit suggested in closing, “the district court [did not] 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.” Future litigants may take the 9th Circuit’s hint.
Please contact your BB&K Environmental and Natural Resources attorney if you have any questions regarding California’s State Implementation Plan or this case.
Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. ©2008 Best Best & Krieger LLP
