                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             JUL 25 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


PHYSICIANS FOR SOCIAL                            No. 14-73362
RESPONSIBILITY-LOS ANGELES; et
al.,

              Petitioners,                       MEMORANDUM*

 v.

U.S. ENVIRONMENTAL PROTECTION
AGENCY; et al.,

              Respondents,

SOUTH COAST AIR QUALITY
MANAGEMENT DISTRICT,

              Respondent-Intervenor.


                   On Petition for Review of a Final Rule of the
                       Environmental Protection Agency

                       Argued and Submitted May 11, 2016
                            San Francisco, California

Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Petitioners challenge aspects of EPA’s approval of revisions to California’s

state implementation plan for the Los Angeles-South Coast Air Basin, including an

attainment demonstration for the revoked one-hour national ambient air quality

standard for ozone. Approval and Promulgation of Implementation Plans for

South Coast, 79 Fed. Reg. 52526 (Sept. 3, 2014). We deny the petition.

      Under the Clean Air Act, challenges to certain EPA actions must be filed no

later than sixty days from the date that notice of the action appears in the Federal

Register. 42 U.S.C. § 7607(b)(1). EPA required California to submit the instant

state implementation plan revisions to correct inadequate compliance with

California’s obligation to adopt and implement a plan providing for attainment of

the one-hour ozone standard. See Finding of Substantial Inadequacy of

Implementation Plan and Call for California State Implementation Plan Revision

for South Coast, 78 Fed. Reg. 889 (Jan. 7, 2013). That action, unchallenged by

Petitioners, was expressly undertaken pursuant to 42 U.S.C. § 7410(k)(5), not 42

U.S.C. § 7509(c). 78 Fed. Reg. 893. Petitioners’ attempt to argue that the

approved attainment deadline should have been adjusted under 42 U.S.C.

§ 7509(d) is therefore untimely and we deny this portion of the petition.

      Petitioners’ remaining challenges are timely and we have jurisdiction under

42 U.S.C. § 7607(b)(1). We review EPA’s interpretation of the Clean Air Act by

applying the framework from Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837,

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842-43 (1984). Comm. for a Better Arvin v. Arvin, 786 F.3d 1169, 1175 (9th Cir.

2015). Petitioners’ challenge to the approved attainment demonstration’s inclusion

of new technology measures fails. Congress did not speak to the precise meaning

of “applicable dates” in 42 U.S.C. § 7511a(e)(5)(B), and EPA has reasonably

resolved that “applicable dates” includes dates validly adjusted pursuant to 42

U.S.C. § 7410(k)(5).

      Petitioners also argue that the tonnage commitments included in the

approved attainment demonstration are unenforceable and therefore contrary to

law. This Court recently found materially identical commitments to be enforceable

when reviewing EPA’s approval of California’s state implementation plan for the

San Joaquin Valley for compliance with the national eight-hour ozone standard.

Comm. for a Better Arvin, 786 F.3d at 1179-80. We are not convinced by

Petitioners’ attempt to distinguish that case. Title 42 U.S.C. § 7410(l) continues to

apply to the one-hour ozone standard, regardless of the revocation of that standard,

by virtue of the statutory anti-backsliding obligations which remain. See 42 U.S.C.

§ 7410(l) (“The Administrator shall not approve a revision of a plan if the plan

would interfere with any . . . applicable requirement of this chapter.”); S. Coast Air

Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 899 (D.C. Cir. 2006) (holding that “the

anti-backsliding limitations” remain as requirements applicable to the one-hour

ozone standard).

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DENIED.




          4
                                                                              FILED
Physicians for Social Responsibility v. EPA, No. 14-73362
                                                                               JUL 25 2016
Christen, Circuit Judge, concurring:                                      MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I agree with the memorandum disposition, which I join in full. I write

separately to emphasize the importance of contingency measures where, as here,

EPA approves a state implementation plan (SIP) that includes section 182(e)(5)

“new technology measures.” See 42 U.S.C. § 7511a(e)(5)(B).

      California’s 2013 SIP for the South Coast “relies on three types of strategies

to reduce basin-wide emissions to the extent necessary to demonstrate attainment

of the 1-hour ozone standard”: (1) implementation of reasonably available control

measures (RACM); (2) “commitments made by [the local and state air quality

control boards] to bring certain regulatory initiatives to their respective boards on a

certain schedule and to meet certain aggregate emissions reductions in certain

years”; and (3) new technology measures. See Approval & Promulgation of

Implementation Plans; California; South Coast 1-Hour & 8-Hour Ozone, Proposed

Rule, 79 Fed. Reg. 29,712, 29,718 (May 23, 2014). The South Coast 2013 SIP

also includes, as required by the Clean Air Act, “enforceable commitments to

develop and adopt contingency measures . . . if the anticipated [new] technologies

do not achieve planned reductions.” 42 U.S.C. § 7511a(e)(5)(B). EPA approved

California’s use of “new technology measures” after determining that the South

                                           1
Coast cannot achieve the 1-hour standard by relying on existing reduction

strategies alone. See 79 Fed. Reg. at 29,722. I agree with my colleagues that

EPA’s reading of the Clean Air Act as permitting post-2010 plans to include “new

technology measures” is reasonable.

      But prior versions of the South Coast’s SIP likewise included “new

technology measures” and the statutorily required “enforceable commitments to

develop and adopt contingency measures” if the new technology measures failed.

42 U.S.C. § 7511a(e)(5)(B); Approval & Promulgation of State Implementation

Plans; California—South Coast, 65 Fed. Reg. 6,091, 6,093, 6,099 (Feb. 8, 2000).

The record in this case does not reveal whether those contingency measures

triggered when the South Coast failed to attain the 1-hour standard by the 2010

deadline, but petitioners’ counsel’s responses to questions posed at oral argument

suggest that the contingencies did not trigger because California withdrew them,

and other control measures, from the South Coast SIP in 2008. See Association of

Irritated Residents v. EPA, 686 F.3d 668, 673 (9th Cir. 2011) (“In 2008, California

withdrew some of the 2003 Attainment Plan’s key elements, including many of the

control measures.”). In 2009, EPA partially disapproved of California’s decision

to withdraw control measures from its SIP, but it did not require the State to

develop a new SIP to correct the error. Concerned citizens sued, and in

                                          2
Association of Irritated Residents we held that EPA could not ignore the State’s

new, inadequate plan, but rather needed to solicit from California a revised SIP that

demonstrated how the South Coast would attain the relevant ozone standard. Id. at

677.

       Association of Irritated Residents clarified that EPA may not permit a state

to delete from its SIP control measures that give the SIP teeth, such as section

182(e)(5) contingency measures. As is relevant here, Association of Irritated

Residents ensures that the section 182(e)(5) contingency measures incorporated

into the South Coast’s 2013 SIP will be there when the South Coast anticipates that

its new technology measures will achieve planned reductions. Hopefully the new

technology measures function as promised; if not, the contingency measures

should trigger as the Clean Air Act requires. See 42 U.S.C. § 7511a(e)(5)(B).




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