Center for Biological Diversity v. U.s. Environmental Protection Agency

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL
DIVERSITY,
Petitioner,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; MICHAEL REGAN,
Administrator, United States
Environmental Protection Agency;
DEBORAH JORDAN, Acting Regional
Administrator, U.S. EPA Region 9,
Respondents.
No. 21-71222
MEMORANDUM*
On Petition for Review of a Final Rulemaking of the United States Environmental
Protection Agency
Argued and Submitted November 15, 2022
Phoenix, Arizona
Before: BYBEE and OWENS, Circuit Judges, and RAKOFF,** District Judge.
FILED
DEC 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.

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Petitioner Center for Biological Diversity challenges the Environmental
Protection Agency’s (EPA) approval of revisions to the Arizona Department of
Environmental Quality’s (ADEQ) State Implementation Plan (SIP) submitted to
correct deficiencies in the preconstruction review and permitting program for
minor stationary sources of air pollution. In 2020, ADEQ submitted a SIP revision
responding to EPA’s 2015 disapproval of multiple proposed exemptions, including
an exemption for “agricultural equipment used in normal farm operations” and an
exemption for minor sources with emission below a certain threshold. EPA
proposed approving the two measures in late 2020 and issued a Final Rule
approving the measures in June 2021. Petitioner appealed, arguing that EPA acted
arbitrarily and capriciously in approving both the agricultural equipment and
emission threshold exemptions because ADEQ failed to demonstrate that
regulation was not necessary to attain and maintain National Ambient Air Quality
Standards (NAAQS).
We have jurisdiction under 42 U.S.C. § 7607(b)(1) and review under the
deferential standard of review for agency actions set forth in the Administrative
Procedure Act, 5 U.S.C. § 706(2)(A). Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir.
2004). Under this standard of review, we must determine whether EPA’s action
was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
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with law.” Vigil, 381 F.3d at 833 (quoting 5 U.S.C. § 706(2)(A)). An agency
action is arbitrary and capricious only “if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.” Motor Vehicle Mfrs.
Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);
see also Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010). In this
case, EPA did not act arbitrarily and capriciously, and we deny the petition.
Petitioner contends that EPA’s approval of ADEQ’s exemption of
agricultural equipment used in normal farm operations was arbitrary and capricious
because ADEQ failed to use “[m]odeling information required to support the
proposed revision” to demonstrate that the exemption would not threaten the
attainment or maintenance of NAAQS. 40 C.F.R. Part 51 App. V § 2.2(e).
However, there is no requirement that every proposed revision must be supported
by modeling. The regulatory language Petitioner cites appears in EPA’s criteria
for determining the completeness of plan submissions—essentially procedural
rules. And though the language is somewhat ambiguous, the most natural reading
of the text is that, when modeling is used, modeling information and supporting
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data must be provided to EPA. This reading is consistent with EPA’s own
interpretation of its regulation. Kisor v. Wilkie, 139 S.Ct. 2400, 2415–18 (2019)
(EPA’s interpretation of its own regulations is subject to deferential review).
Further, in response to EPA’s 2015 suggestions, ADEQ provided reasonable
explanations for why the exemption is quite narrow. EPA—with its substantial
technical expertise—was well-situated to evaluate these explanations. See Lands
Council, 629 F.3d at 1074 (“Moreover, we generally must be at our most
deferential when reviewing scientific judgments and technical analyses within the
agency’s expertise.” (citations and quotations omitted)). EPA reviewed ADEQ’s
specific responses to the particular shortcomings it identified in its earlier
disapproval of the exemption and was satisfied that the exemption did not threaten
the attainment and maintenance of NAAQS. Therefore, EPA did not act in a
manner that meets any of the definitions of arbitrary and capricious. See Motor
Vehicle Mfrs. Ass’n, 463 U.S. at 43.
Petitioner also argues that EPA acted arbitrarily and capriciously in
approving ADEQ’s minor New Source Review (NSR) permitting thresholds for
PM2.5 and nonattainment areas because ADEQ failed to demonstrate with modeling
that the thresholds are adequate to protect NAAQS. However, using a similar
approach to that EPA itself used to develop the tribal minor NSR program, ADEQ
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conducted a significantly improved analysis of emissions and sources covered by
the state’s minor NSR thresholds. ADEQ used 2014 National Emission Inventory
data from the entire state to demonstrate the impact of minor sources below the
proposed threshold and broke out results for nonattainment areas specifically. This
analysis demonstrated that the proposed permitting thresholds cover about 87–100
percent of emissions in nonattainment areas. Further, ADEQ explained the
primary sources of emissions in nonattainment areas, demonstrating that minor
sources were insignificant contributors. We may not set aside agency action if the
agency has considered the relevant factors and articulated a rational connection
between the facts found and the choice made. Vigil, 381 F.3d at 833. Here, EPA
considered ADEQ’s analysis and reasonably found that it provided an adequate
basis to conclude that the permitting thresholds were sufficient to attain and
maintain NAAQS. 86 Fed. Reg. 31927, 31931–33 (June 16, 2021).
PETITION DENIED.
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