Ninth Circuit Court of Appeals Hands EPA and Arizona a Victory

On January 9, 2020, the Arizona Center for Law in the Public Interest (“ACLIPI”), on behalf of several individuals, filed with the Ninth Circuit Court of Appeals (“Court”) a Petition for Review (“Petition”) of the United States Environmental Protection Agency’s (“EPA”) determination of attainment for the 2008 Ozone National Ambient Air Quality Standard (“Ozone Standard”) in the Phoenix-Mesa Area (“Area”) by the 2016 attainment deadline.  The Petition challenged EPA’s determination that the 2008 Ozone Standard was met in the Area despite several air quality monitoring exceedances, which the Arizona Department of Environmental Quality (“ADEQ”) attributed to certain “Exceptional Events,” and EPA’s related decision to suspend the “contingency requirements” that might otherwise apply had the Area failed to meet the 2008 Ozone Standard.  EPA’s Exceptional Events rule allows monitoring exceedances to be excluded from attainment determinations where an event: (1) “affected air quality in such a way that there exists a clear causal relationship between the specific event and the monitored exceedance,” (2) “was not reasonably controllable or preventable,” and (3) “was caused by human activity that is unlikely to recur at a particular location or was a natural event.”  EPA concurred in ADEQ’s demonstration that the exceedances were caused by California’s massive 2015 Lake Fire wildfire in the summer of 2016, and therefore that the Area met the 2008 Ozone Standard, and that additional reductions in ozone in the form of contingency requirements were not required. This attainment designation of the 2008 Ozone Standard additionally meant that the Area would be designation “moderate” as opposed to “serious” for the 2015 Ozone Standard.

The Petition put Arizona in a tenuous position as a Court ruling reversing EPA’s decision could result in EPA’s attainment decision being reversed, thereby the Area would lose its attainment designation for the 2008 Ozone Standard and be redesignated from its current “moderate” to “serious” nonattainment for the 2015 Ozone Standard.  A “serious” nonattainment designation would require additional control measures primarily targeting, and potentially imposing around $250 million in regulatory costs on, Arizona industry. Rather than the focus being on non-point stationary sources i.e. motor vehicles, international transport, etc. which are the current key contributor to ozone precursor emissions, these additional more stringent costly measures on point sources would likely have little impact on air quality. Further, the Petition also presented a challenge to the Exceptional Events rule and its efficacy as a critical tool for the southwestern states, where wildfires are a common summer occurrence and impact air quality.  Therefore, the Arizona Chamber of Commerce and Industry and the Arizona Manufacturers Council (“Arizona Chamber/AMC”) retained Snell & Wilmer to prepare and file an amicus brief supporting EPA’s decision and requesting that the Court give the deference to its decisions.[1] ADEQ also filed an amicus brief defending the data it presented to the EPA, which the EPA classified as being “complete, quality-assured, and certified data.”

It has been a long 18 months of filings, briefings, and oral arguments, but the Court’s July 28, 2021 Opinion denying the Petition proved worth the wait for EPA, ADEQ and the Arizona Chamber/AMC. In regard to EPA’s Exceptional Events determination, the Court “deferred to EPA’s technical conclusions and found that Arizona adduced evidence sufficient to allow EPA to make such finding,” and concluded that EPA’s finding was compliant with the Exceptional Events rule. Additionally, in regard to the Petitioner’s challenge to the EPA’s suspension of Arizona’s contingency measures requirement, the Court “held that petitioners forfeited this argument by not sufficiently raising it in their comment before the agency, but, even under a lenient interpretation of the content of their comment before the agency, the [Court] concluded that EPA’s construction of the Clean Air Act was owed deference…”.

It is gratifying to see the EPA, ADEQ and the Arizona business industry be on the same page in this most important ruling.

[1] The authors represented the Arizona Chamber/AMC in this matter.