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Arizona v. EPA

Citation: 28 ELR 21515
No. Nos. 96-71083, 97-70012, 170 F.3d 870/(9th Cir., 08/10/1998)

The court upholds the U.S. Environmental Protection Agency's (EPA's) redesignation of five parcels of tribal land as a nonfederal Class I area under the Clean Air Act (CAA) prevention of significant deterioration (PSD) program. The court first holds that Arizona's chamber of commerce lacks standing to petition the court for review of the EPA rulings because it did not participate in either the EPA redesignation proceeding or the dispute resolution proceedings. The court next holds that EPA did not abuse its discretion in reclassifying the largest parcel. Arizona stipulated at oral argument that this parcel was a reservation as used in CAA § 164(c). The court then remands to EPA the determination of whether the other four parcels are reservation lands for purposes of the CAA. The court notes, however, that at least two of the four parcels are adequately protected by virtue of their proximity to the largest parcel. The court further holds that in light of EPA's clearly restricted scope of review, the Agency did not abuse its discretion in approving the tribe's redesignation request to the extent the request covered the bona fide reservation land. In view of relevant case law and the fact that Congress does not want EPA reweighing the effects of a proposed redesignation or second-guessing a tribe's decision to redesignate its reservation lands, it cannot be said that EPA abused its discretion in concluding that the tribe was not required to explicitly balance the different effects of redesignation, to identify air quality-related values, to evaluate the extent to which Class I status might discourage particular industrial development and expansion, or to point to specific off-site sources that might be impacted by the redesignation. EPA properly concluded that such analysis would be speculative. Because the tribe in this case openly considered all the factors enumerated in the PSD provisions of its plan, the court affirms EPA's ruling that the tribe satisfied its procedural requirements under the CAA.

The court, however, holds that EPA abused its discretion in promulgating the tribe's redesignation as part of a newly created federal implementation plan (FIP). EPA ignored the CAA 1990 Amendments, which dictated that the applicable plan for a Native American tribe is not a FIP. Thus, the court remands the case to EPA so it may repromulgate its redesignation ruling in accordance with the statutory requirements. Last, the court dismisses the state's challenge that EPA abused its discretion in conducting the dispute resolutions between Arizona and the tribe because it improperly deferred to the tribe. EPA clearly stated in its published ruling that it based its final rule approving the redesignation solely on the determination that the land at issue was reservation land within the meaning of the CAA and that the tribe met the procedural requirements for redesignation. No evidence has been presented that EPA relied on the dispute resolution proceedings in approving the redesignation.

A judge concurring in part and dissenting in part would hold that EPA did not err in concluding that the four disputed parcels were reservation lands and that EPA properly promulgated the tribe's redesignation as part of a FIP.

Counsel for Petitioners
Matthew P. Millea, Yvonne R. Hunter, Ass't Attorneys General
Attorney General's Office
1275 W. Washington St., Phoenix AZ 85007
(602)542-4266

Counsel for Respondents
Ann C. Juliano
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Pregerson and Ferguson, JJ.