Earlier this week, the 9th Circuit Court of Appeals granted part of a petition challenging EPA’s approval of California’s SIP for ozone and PM 2.5 in the San Joaquin Valley. While the trade press has been focusing on the partial reversal, I think that EPA won much more than it lost.
What did it lose? California’s plans for complying with the ozone and PM 2.5 NAAQS relied in part on emissions reductions to be attained as a result of California’s authority under the CAA to impose more stringent mobile source emissions standards than are applicable nationally. However, those mobile source standards were not formally incorporated into the SIP. To the Court, that was a fatal error:
the plain language of § 7410(a) refutes EPA’s position. The statute makes clear that SIPs “shall include” all emissions limitations, control measures, means, and techniques on which the state relies to assure compliance with the CAA.
Indeed, because the Court concluded that the plain language of the CAA requires that all emissions limitations be included in the SIP, it did not even reach the second step of Chevron analysis. The Court did nonetheless volunteer its view that its decision was consistent with CAA policy goals, because emissions limitations not included in a SIP cannot be enforced directly by EPA or by citizens.
What did EPA win? The most significant issue was that both plans:
rely on state commitments to propose and adopt emission control measures and to achieve aggregate emission reductions sufficient to comply with the NAAQS.
The plaintiffs argued that a commitment to impose adequate emissions limitations in the future was not sufficient, but the Court disagreed. Why?
The reason is simple: Once approved into a SIP, the measures and the emissions reduction requirements, as well as the relevant deadlines, are binding on the state, and can only be altered through a SIP revision approved by EPA in another notice-and-comment rulemaking.
To me, EPA’s win is much more significant than its loss. It seemed fairly obvious that, when the statute says that all emissions limitations relied on to attain the NAAQS must be in the SIP, it means just what it says. Moreover, the consequences to EPA and California don’t seem significant. The plans remain the same. On the other hand, the 9th Circuit’s holding that a SIP need not include all the required emissions limits, but instead can include a promise to promulgate such emissions limits in the future, seems quite significant and substantially increases the flexibility that EPA and states have in meeting NAAQS.