The Ninth U.S. Circuit Court of Appeals has upheld a plan that gives the San Joaquin Valley until 2010 to achieve permissible amounts of soot and dust in the air. Environmentalists and public health advocates had argued for a 2006 deadline.

Over the last 15 years, air pollution has emerged as one of the biggest issues in the San Joaquin Valley (see CP&DR Environment Watch, January 2004, April 2002). Increasingly, the issue has land use implications, as air quality regulators restrict certain farming practices and search for ways to encourage denser development.

The issue in this case is PM-10 — particulate matter of 10 microns or less. Unlike ozone pollution, PM-10 is visible to the human eye. The San Joaquin Valley has some of the highest PM-10 levels in the country, primarily from travel on dirt roads, agricultural practices and burning.

In 1990, Congress added provisions to the Clean Air Act specifically to address PM-10 pollution. At that time, the Valley was classified a “moderate area” for PM-10 pollution, a classification that gave the region until December 31, 1994, to attain air quality standards. State and regional officials appealed and got the Valley reclassified as a “serious area,” which changed the attainment deadline to December 31, 2001.

The San Joaquin Valley Unified Air Pollution Control District and the California Air Resources Board submitted an attainment plan to EPA in 1997 but withdrew the blueprint when EPA indicated it would reject the plan. The state did not submit a new plan until July 2002 — six months after the attainment deadline passed. Because of the missed deadline, EPA required the state to revise the plan to reflect 5% annual reductions in PM-10 pollutants. The state submitted the revised plan in August 2003, and EPA approved it the following year. The revised plan contains a December 31, 2010, deadline for attainment — a full 16 years later than the original deadline.

The groups Association of Irritated Residents, Latino Issues Forum, Medical Advocates for Healthy Air and Sierra Club then sued the EPA, arguing that the EPA could not extend the deadline past 2006. The advocacy groups also challenged the plan’s methods of attaining air quality standards. A unanimous three-judge panel of the Ninth Circuit, however, upheld the EPA’s actions.

The groups argued that because the Clean Air Act contains provisions for a five-year extension of the PM-10 deadline, the EPA could not rely on more general Clean Air Act provisions to grant consecutive five-year extensions. They also argued that the EPA’s interpretation of the law would allow for endless 10-year extensions without repercussions.

But the Ninth Circuit determined that specific PM-10 measures in the act do not prohibit “the EPA’s application of the general provisions to change attainment deadlines.”

“There are repercussions for failing to attain the standard by the applicable deadline,” Chief Judge Mary Schroeder wrote for the Ninth Circuit. She cited the requirement that areas that do not request a deadline extension must reduce emissions by 5% annually, and the possibility that the federal government could withhold highway funding.

As for achieving those 5% reductions, the advocacy groups argued that Valley air regulators should not be able to count reductions based on the implementation of “best available control measures,” because the Clean Air Act has required those measures in the Valley since 1997. They argued that the plan’s approach would let regulators count attainment measures that should have been implemented years ago as “reductions.”

The Ninth Circuit disagreed. “[L]ate implementation is better than none,” Schroeder wrote. The court also rejected the argument that the Valley should not be able to credit “excess reductions” to future years.

The advocacy groups further challenged the EPA’s decision not to act on the 2003 plan’s contingency measures in the event of another missed deadline. The groups argued that the agency had to decide one way or the other. The EPA contended it could approve plans piecemeal. The Ninth Circuit sided with the EPA. Piecemeal approvals “ensure that earlier-approved provisions will become federally enforceable as soon as possible,” Schroeder wrote.

The Case:
Association of Irritated Residents v. U.S. Environmental Protection Agency, No. 04-72650, 05 C.D.O.S. 8024, 2005 DJDAR 10882. Filed September 6, 2005.

The Lawyers:
For AIR: Brent Newell, Center on Race, Poverty & Environment, (661) 720-9140.
For the San Joaquin Valley Unified Air Pollution Control District: Philip Jay, (559) 230-6033.