Latino Issues Forum v. EPA

Mar 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-71907. The Latino Issues Forum and Sierra Club challenged U.S. EPA's approval of a revision to the state implementation plan (SIP) for San Joaquin Valley, California. The revision, known as Rule 4550, is part of the Conservation Management Practices (CMP) Program, an air-pollutant reduction program, established by the San Joaquin Valley Unified Air Pollution Control District (District). Rule 4550 aims to reduce emissions from agricultural sources of a certain kind of particulate matter known as PM-10. The Appeals Court ruled, "We hold that Rule 4550 comports with the requirements of 42 U.S.C. §§ 7509 and 7513a(b)(1)(B) and, therefore, deny the petition."

The Petitioners challenged two aspects of EPA’s approval of Rule 4550 as being arbitrary, capricious, or not in accordance with law. First, Petitioners claim that Rule 4550 does not incorporate “all feasible measures,” as required by 42 U.S.C. § 7509(d)(2). Second, Petitioners assert that Rule 4550’s menu of options for controlling agricultural PM-10 emissions does not constitute BACM, as required by 42 U.S.C. § 7513a(b)(1)(B).

On the first question, the Appeals Court said, "Because § 7509(d)(2) is ambiguous and the EPA’s statutory interpretation is reasonable, we hold that the EPA acted lawfully by not requiring implementation of 'all feasible measures' into Rule 4550." On the second issue, the Appeals Court said, "EPA demonstrated that the controls included in the rule’s menu meet the stringency requirements of BACM. Although the context is different, our inquiry into whether the EPA properly followed the procedures set forth by the Act remains the same. And, just as we held in Vigil, there is no evidence here that the process which led to the creation and adoption of Rule 4550 was improper. . . Because the EPA made no clear error of judgment in ruling that Rule 4550 complies with BACM, because the EPA followed its regulatory process, and because that process was consistent with one we approved in Vigil, we hold that the EPA’s approval of Rule 4550 did not violate 42 U.S.C. § 7513a(b)(1)(B)."

Access the complete opinion (click here).