National Environmental Enforcement Journal
Amendment to Idaho SIP Remanded to Agency
Safe Air for Everyone et al. v. U.S. Environmental Protection Agency
No. 05-75269 (9th Cir. Jan. 30, 2007)
A common practice in Idaho, particularly in the northern portion of state among bluegrass farmers, is the open burning of agricultural fields. The Idaho legislature has approved such burning, finding that there is an environmental benefit from the practice because it controls disease, weeds, and pests, enhances crop rotations, and allows for the growing of certain crops in environmentally sensitive areas. However, open field burning also releases particulate matter into the air that contributes to air pollution. Sensitive individuals must stay indoors or even leave the area during periods where fields are being fired.
The original Idaho State Implementation Plan (SIP) under the Clean Air Act (CAA) was approved by U.S. EPA in May 1972. In that SIP, certain open burning was permitted, including field burning, with certain specified limitations. In 1993, EPA approved a new Idaho SIP that significantly changed the open burning provisions. In that document, no open burning was allowed unless specifically set forth in existing Idaho air pollution regulations. Those regulations retained seven of the nine categories of permitted fires and added three new categories, but did not include field burning as permissible. In 2003, EPA approved another set of Idaho SIP amendments. They updated the open burning regulations to reflect a recodification of Idaho air quality rules, but the substantive language on open burning was identical to the language approved in the 1993 SIP.
In 2005, EPA approved amendments to the SIP that added field burning as an eleventh category of allowed burning. The petitioner, Safe Air for Everyone (SAFE), submitted comments during the 2005 rulemaking and then challenged EPA’s approval of the amendment that permitted open field burning, on the grounds that the revised SIP did not meet the CAA approval standard that disallows revisions that interfere with attainment of further air quality progress.
Idaho’s 2003 SIP allowed ten categories of open burning. As EPA acknowledged during the 2005 rulemaking proceedings, none of these categories included field burning on their face. The court noted that a SIP must be interpreted under the plain meaning rule. If the language is clear, there need be no further exploration of the issue. The court quoted language in Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission, 366 F.3d 692, 698 (9th Cir. 2004) that a “regulation should be construed to give effect to the natural and plain meaning of its words” (echoing language from Crown Pacific v. Occupational Safety & Health Review Commission, 197 F.3d 1036, 138.
However, during the 2005 rulemaking proceeding regarding the proposed amendment, EPA looked beyond the plain meaning to Idaho’s “intent” in drafting the SIP. The agency examined the state’s overall approach to field burning and considered the legislative history of Idaho’s laws relating to agricultural burning. The agency also noted its own understanding that agricultural burning was not prohibited by the SIP. According to the court, this interpretative approach used by EPA is not compatible with the role of SIPs in the federal regulatory scheme.
In Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992), the Court, in a Clean Water Act case, stated that a SIP “effectively incorporates into federal law those state-law standards the Agency reasonably determines to be ‘applicable.’ In such a situation, then, state water quality standards — promulgated by the States with substantial guidance from the EPA and approved by the Agency — are part of the federal law of water pollution control.” By analogy, therefore, once EPA approves it, a SIP becomes federal law. Therefore, the state’s interpretation of its regulations incorporated into a SIP is not dispositive of the meaning of the SIP, even if that interpretation might be binding as a matter of state law.
Under the standards governing interpretation of federal regulations, the plain language of a regulation will govern unless it is contrary to clearly expressed administrative intent or the plain meaning would lead to absurd results. The court concluded, however, that if clearly expressed administrative intent is to override the plain meaning of a regulation, some notice of that regulatory intent must be referenced in the published notices that accompany the rulemaking process. The D.C. Circuit has stated: “To protect the integrity of [the Administrative Procedure Act’s required] procedures, we cannot permit an agency to rely on its unexpressed intentions to trump the ordinary import of its regulatory language.” Exportal Ltda. V. United States, 902 F.2d 45, 51 (1990).
This is particularly important under the CAA because all judicial challenges must be filed within sixty days of a SIP’s approval. 42 U.S.C. § 7607(b)(1). If any agency could promulgate a regulation that seems to mean one thing on its face but later interprets it to mean another, a party depending on the plain meaning might have no way to challenge the agency’s “hidden” interpretation.
The court concluded that following the plain language of Idaho’s SIP would not lead to an absurd result or contravene the pertinent administrative history. The record of air quality and health problems created by field burning definitely demonstrates that it would not be patently inconceivable that the federal air pollution law would ban a significant source of a state’s particulate pollution. The court pointed out that Washington has, in fact, banned burning on farms that produce grass seed except in limited circumstances.
The only way an administrative intent to allow open field burning in Idaho was expressed was in informal materials such as letters and presentations and in silent acquiescence when approving certain anti-pollution strategies submitted by Idaho. Although Idaho lawmakers and regulators made their intentions clear, these measures were not referenced in EPA-published materials that accompanied adoption of the earlier SIPs.
On appeal, EPA offered two additional reasons that the court should not rely on the plain meaning of the 2003 and earlier SIPs. First, it argued that giving effect to the plain meaning of the SIP contrary to the true intent of state policymakers would violate case law prohibiting the agency from enacting more stringent SIP provisions than those proposed by the state. See Riverside Cement Company v. Thomas, 843 F.2d 1246 (9th Cir. 1988). The decisions cited by EPA, however, interpreted the CAA provisions concerning the authority of EPA to approve or deny SIPs. These decisions are not relevant to the task of interpreting SIP language that was originally proposed by the state.
Second, EPA argued that interpreting the language based on the plain meaning rule would contradict case law prohibiting EPA from approving SIPs based on an “elusive and illusory measure.” Riverside Cement Company v. Thomas, 843 F.2d 1246, 1248 (9th Cir. 1988). In the Riverside Cement case, EPA approved a SIP that contained a provision that states its operation was “contingent upon the results of ongoing factfinding.” Since this provision might never come into effect, the court held that EPA could not rely on it to determine whether the SIP met the CAA’s pollution reduction requirements. In contrast, there is nothing on the face of Idaho’s SIP that suggests field burning is contingent or indefinite. Therefore, it is not illusory under the case law.
EPA’s decision to approve the 2005 amendment to Idaho’s SIP rested on the fundamental premise that “EPA does not believe that Idaho’s existing SIP when viewed in its entirety prohibits the burning of crop residue,” (70 Fed. Reg. at 39,659). The court held that EPA’s interpretation of the SIP was clearly erroneous. The court did not reach the primary question of whether the revised SIP met the requirements of the CAA that call for disapproval if those revisions would “interfere with any applicable requirement concerning attainment and reasonable further progress… or any other applicable requirement of [the CAA provisions].” It, thus, granted SAFE’s petition and remanded the case to the agency to determine whether the proposed amendment meets the requirements of the CAA, in light of the court’s holding that the existing SIP bans field burning, while the revisions allow and regulate the practice.
Published by the National Association of Attorneys General with the cooperation and support of the Office of Enforcement and Compliance Assurance of the U.S. Environmental Protection Agency.
Chief Counsel for Environment