9th Circuit Knocks Wind Out of Clean Air Challenge

The Clean Air Act rules don’t impose a duty on California’s heavily polluted South Coast and San Joaquin Valley attain the targeted clean air standards only that they have to demonstrate they have a plan that could achieve the goal by a certain date.

That’s what Environmental Protection Agency lawyer Amanda Berman argued Wednesday in the 9th U.S. Circuit Court of Appeals. She was defending the EPA handling of the plan as to control smog in the congested Southern California region.

“I know it sounds counterintuitive,” Berman said. She argued that environmentalists missed their deadline to sue over this.

Environmental groups, including Earthjustice, the Sierra Club and Medical Advocates for Healthy Air attacked the EPA’s failure to impose more stringent requirements on the region when it failed to meet November 2010 reduced ozone level goals set in 1990.

Failure to trigger the prescriptive requirements injured the plaintiffs, argued Paul Cort the Earthjustice attorney.

The 9th Circuit panel seemed to side with the EPA, focusing most of the argument on whether the environmental groups could even get in the courthouse door. The panel questioned whether Cort’s clients had waited too long to sue and whether any plaintiff had actually been injured, thus giving them a right to sue.

“Timeliness suggests you had 60 days to sue after the 2004 [EPA] determination,” said Judge Diarmuid O’Scannlain.

The lawsuit was not filed until 2012.

Judge Jerome Farris confronted Cort about the jurisdiction and plaintiffs’ standing to sue. “You have two problems, time and standing. You may think you’ve refuted both of them, but at least a third of this court thinks you’ve refuted neither of them.”

Farris asked Berman what the panel’s bottom line should be, outright dismissal?

“The case should be dismissed as time barred or for a lack of standing, whichever is more important to the court,” she said.

Berman argued that an EPA decision in 2011 on how to proceed “closed the door” on the groups when they failed to sue within the limited time period.

Case: Medical Advocates for Healthy Air v. EPA, 12-70630


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