Academic journal article Environmental Law

I. Environmental Quality

Academic journal article Environmental Law

I. Environmental Quality

Article excerpt

A. Clean Air Act

1. El Comite Para el Bienestar de Earlimart v. U.S. Environmental Protection Agency, 786 F.3d 688 (9th Cir. 2015).

In this case, El Comite Para el Bienestar de Earlimart and several other community organizations (collectively, El Comite), (1) petitioned for judicial review of the United States Environmental Protection Agency's (EPA) 2012 final action approving revisions to California's State Implementation Plan (SIP) for achieving emission standards under the Clean Air Act (CAA). (2) Specifically, El Comite argued that EPA's approval of California's Pesticide Element and Fumigant Regulations, which established goals for reducing volatile organic compound (VOC) emissions, 1) was unreasonable in light of the SIP's plain language, 2) ignored an earlier remand order requiring EPA to ensure enforceability of the Element's emission reduction commitments, and 3) was prohibited due to EPA's failure to secure "necessary assurances" (3) from California that the SIP would not violate Title VI of the Civil Rights Act (4) by exposing Latino schoolchildren to a disparate impact from pesticide use. The Ninth Circuit considered the steps EPA had taken in approving the plan and found that: 1) EPA had interpreted ambiguities in the Pesticide Element in a reasonable manner, 2) EPA did not need to consider the enforceability of earlier control measures because EPA could enforce the revised control measures, and 3) EPA had reasonably determined that California had supplied the necessary assurances that enforcement of the new Pesticide Element would comply with federal law, including Title VI of the Civil Rights Act. The court therefore upheld EPA's final order approving the revised SIP.

Prior to this case, El Comite Para el Bienestar de Earlimart v. Warmerdam (El Comite I) (5) was litigated to enforce emissions standards in the Pesticide Element of California's 1994 SIP. The 1994 Element committed California to reducing VOC emissions by a maximum of 20% from the 1990 baseline by 2005 and gave California's Department of Pesticide Regulation (DPR) the authority to adopt additional regulatory measures to ensure those reductions were achieved. EPA approved the Pesticide Element after California submitted additional supporting documentation. DPR then determined that no further regulations were needed to meet its reduction commitments. Among other challenges, El Comite filed a petition for review challenging EPA's approval of the Pesticide Element on the grounds that the Element contained no enforceable commitments. The Ninth Circuit remanded the petition to EPA with instructions to determine whether EPA could enforce the Pesticide Element's commitments. Before EPA complied with that order, California submitted its revised 2009 SIP. The revised SIP's Pesticide Element established permissible fumigant emissions levels as well as methods to achieve those limitations and monitor compliance. EPA approved the revisions in 2012 after determining that the revisions included enforceable emission reduction standards. At that point, El Comite filed the petition at issue in this case.

This case required the Ninth Circuit to resolve three issues related to EPA's approval of California's revised SIP. The court considered 1) whether EPA reasonably interpreted the Pesticide Element; 2) whether the revised Pesticide Element was sufficiently enforceable; and 3) whether California had supplied adequate assurances of compliance with federal law. First, the court concluded that EPA's interpretation of the Pesticide Element's VOC reduction commitments was reasonable in light of ambiguity in the Element's language. El Comite argued that the Pesticide Element unambiguously required a 20% reduction in emissions for the San Joaquin Valley rather than the 12% reduction approved by EPA, and that EPA failed to consider whether the revision from 12% to 20% violated the Act's "anti-backsliding" provision. (6) The court, however, agreed with EPA that the Pesticide Element ambiguously and inconsistently referenced both 12% and 20% VOC emission reduction commitments. …

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