                                                                              FILED
                             NOT FOR PUBLICATION                               JUN 18 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


MEDICAL ADVOCATES FOR                            No. 12-73386
HEALTHY AIR; LATINOS UNITED
FOR CLEAN AIR; SIERRA CLUB;                      MEMORANDUM*
NATIONAL PARKS CONSERVATION
ASSOCIATION; NATURAL
RESOURCES DEFENSE COUNCIL,

              Petitioners,

 v.

U.S. ENVIRONMENTAL PROTECTION
AGENCY; LISA P. JACKSON,
Administrator, U.S. EPA; JARED
BLUMENFELD, Regional Administrator,
Region IX, U.S. EPA,

              Respondents,

SOUTH COAST AIR QUALITY
MANAGEMENT DISTRICT; SAN
JOAQUIN VALLEY UNIFIED AIR
POLLUTION CONTROL DISTRICT;
NATIONAL ENVIRONMENTAL
DEVELOPMENT ASSOCIATION’S
CLEAN AIR PROJECT,

              Respondents-Intervenors.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     On Petition for Review of an Order of the
                        Environmental Protection Agency

                     Argued and Submitted February 12, 2015
                            San Francisco, California

Before: SCHROEDER and SILVERMAN, Circuit Judges and GARBIS,** Senior
District Judge.

      This case arises out of the Environmental Protection Agency’s (“EPA”)

1997 decision to change the measurement standard for setting the national ambient

air quality standard (“NAAQS”) for the pollutant ozone. Prior to 1997, the EPA

measured average pollutant concentrations hourly. In 1997, however, the EPA

concluded that measuring average pollutant concentrations over an 8-hour span

would better protect public health. The EPA also made the standard slightly more

stringent, thus changing not only “the measuring stick [but also] the target.” South

Coast Air Quality Mgmt. Dist. v. EPA (“South Coast”), 472 F.3d 882, 892 (D.C.

Cir. 2006).

      Section 172(e) of the Clean Air Act (“CAA”) provides that when a NAAQS

is “relaxed,” the EPA is authorized to approve controls that are “not less stringent”

than controls previously in effect. The CAA does not address a change to the

NAAQS that results in a strengthened standard.

       **
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.

                                          2
      This petition for review is a challenge by numerous environmental groups to

the EPA’s approval of a revision to California’s State Implementation Plan (“SIP”)

that authorized the San Joaquin Valley Unified Air Pollution Control District

(“Pollution Control District”) to impose fees on mobile sources of

pollution—primarily motor vehicles—as an alternative to the fees previously

imposed on stationary sources of pollution pursuant to Section 185 of the CAA.

      Respondent-Intervenors, including the Pollution Control District and

industry groups, question petitioners’ standing, arguing that because the alternative

control is not only “not less stringent” than Section 185, but is in fact more

stringent, the petitioners are not injured. The practical effect of the alternative

control, however, is to shift costs from stationary sources to the multitude of

vehicle owners, and this has an impact on the individuals petitioners represent that

is sufficient to satisfy standing requirements. See Natural Res. Def. Council v.

EPA, 643 F.3d 311, 319 (D.C. Cir. 2011) (recognizing that a plan that EPA might

legitimately find equivalent to the Section 185 controls “could nonetheless be so

meaningfully different as to cause cognizable Article III injury.”).

      The merits of the petitioners’ challenge go to the same issues we addressed

in Natural Res. Def. Council v. EPA (“NRDC”), 779 F.3d 1119 (9th Cir. 2015).

We there held that the principles of Section 172(e) that address the relaxation of a


                                           3
NAAQS should apply when a standard is strengthened. Therefore, so long as an

alternative control is “not less stringent,” the principles of Section 172(e) are

satisfied. We followed the D.C. Circuit in South Coast in recognizing that Section

185 is a “control” to which Section 172(e) applies. 472 F.3d at 903. The

petitioners do not contend that the alternative control proposed by the Pollution

Control District is “less stringent” than Section 185 controls.

      We held in NRDC that the EPA reasonably interpreted Section 172(e) to

authorize the EPA to approve alternative controls not less stringent than the

Section 185 fee program. 779 F.3d at 1128. We must reach the same result here.

Because the EPA concluded that the Pollution Control District’s revision to its

portion of California’s SIP is not less stringent than the Section 185 controls, the

EPA was authorized to approve it.

      The petition for review is DENIED.




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