Opinion
NOT FOR PUBLICATION
Argued and Submitted November 15, 2006 Seattle, Washington
On Petition for Review of an Order of the Environmental Protection Agency EPA No. 70 Fed. Reg. 18074
Before: ALARC§N, RYMER, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Petitioner Safe Air for Everyone (§SAFE§) seeks review of a final rule promulgated by the Environmental Protection Agency (§EPA§) that regulates air pollution on Idaho§s Coeur d§Alene Indian Reservation. 40 C.F.R. §§ 49.9921-.9930. Although SAFE presented EPA with powerful evidence that the air pollution caused by agricultural burning on the Coeur d§Alene Reservation is quite significant and has detrimental effects on the health of nearby residents, we review EPA§s decision mindful that the Administrative Procedures Act (APA) dictates that §we may not substitute [our] judgment for that of the agency.§ Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir. 2004) (alteration in original) (quoting Friends of Yosemite Valley v. Norton, 348 F.3d 789, 793 (9th Cir. 2003)). Because the rule is not §arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, § 5 U.S.C. § 706(2)(A), we deny the petition for review.
The statutes and regulations that enable EPA to regulate air quality on Indian reservations provide EPA with broad discretion in setting the content of such regulations: §[T]he Administrator . . . shall promulgate without unreasonable delay such . . . provisions as are necessary or appropriate to protect air quality.§ 40 C.F.R. § 49.11(a) (emphasis added); see also 42 U.S.C. § 7601(d)(4) (§In any case in which the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, the Administrator may provide, by regulation, other means by which the Administrator will directly administer such provisions so as to achieve the appropriate purpose .§ (emphasis added)). SAFE recognizes that the Clean Air Act does not require EPA to regulate agricultural burning on the Coeur d§Alene Reservation. Instead, it argues that EPA acted in an arbitrary or capricious manner by choosing to regulate certain air pollution concerns without addressing agricultural burning on the Coeur d§Alene Reservation.
1. SAFE challenges EPA§s decision not to require those engaging in agricultural burning on the Coeur d§Alene Reservation to obtain a permit when it included such a permit regime in the regulations covering the Nez Perce and Umatilla Reservations. See 40 C.F.R. § 49.133. EPA depended upon two reasons to explain its choice.
First, EPA explained that it considered the views of the tribes in deciding where to impose the permit system. Both the Nez Perce and Umatilla Tribes requested their reservations§ inclusion in the permit system, but the Coeur d§Alene Tribe did not. This consideration was consistent with the President§s directive that federal agencies shall §where possible, defer to Indian tribes to establish standards; and in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.§ Exec. Order 13, 175, § 3(c)(2)-(3), 3 C.F.R. 304, 305 (2000), reprinted in 25 U.S.C. § 450. EPA§s implementation of the Executive Order was not arbitrary, capricious, or an abuse of discretion.
Second, EPA explained that it decided not to impose a permit system on the Coeur d§Alene Reservation because that Reservation, unlike the Nez Perce and Umatillia Reservations, already had adopted a mandatory permit system for agricultural burning. Although SAFE vigorously challenges the adequacy of the Coeur d§Alene Reservation§s permit system, there is no dispute that Coeur d§Alene Reservation was unique in mandating permits at all. Moreover, EPA explained that the Coeur d§Alene Reservation§s permit system §has undergone annual revisions and improvements§ in preceding years and that EPA did not view a federally mandated system as necessary §at this time, § in light of evidence in the administrative record demonstrating such efforts. EPA noted, however, that it could add a federally mandated system in the future if such a system became §necessary or appropriate.§
Given EPA§s broad discretion in promulgating air quality regulations on Indian reservations, EPA could view these reasons as relevant factors in its approach toward agricultural burning on Indian reservations. Because EPA§s decision was §based on a consideration of the relevant factors, § it was not arbitrary and capricious.
N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006) (quoting Blue Mountains Biodiverstiy Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998)) (internal quotation marks omitted). Moreover, by citing these factors, EPA explained why the Coeur d§Alene Reservation was not similarly situated to the Nez Perce and Umatilla Reservations and thus could be treated differently. See Envtl. Def. Ctr., Inc. v. U.S. EPA, 344 F.3d 832, 873 (9th Cir. 2003), cert. denied, 541 U.S. 1085 (2004).
2. SAFE challenges EPA§s failure to prohibit emissions on the Coeur d§Alene Reservation, including those from agricultural burning, that would §unreasonably interfere with the enjoyment of life and property.§ See 40 C.F.R. § 49.135. No provision of the Clean Air Act requires EPA to adopt such a standard, which EPA originally proposed not for health and safety purposes but to cover reservations with unique Tribal cultural or traditional resources threatened by air pollution.
EPA explained that it adopted a more lax §imminent and substantial endangerment to public health or welfare, or the environment§ standard, which parallels the Clean Air Act§s emergency powers provision, so as to use language that already had a defined meaning. EPA specifically acknowledged SAFE§s comment but stated that the stricter standard was designed to cover an air quality issue different from health and safety concners. Such a response was adequate: §There is no obligation to make references in the agency explanation to all the specific issues raised in comments. The agency§s explanation must simply enable a reviewing court to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them the way it did.§ Mt. Diablo Hosp. v. Shalala, 3 F.3d 1226, 1234 (9th Cir. 1993) (per curiam) (quoting S.C. ex rel Tindal v. Block, 717 F.2d 874, 886 (4th Cir. 1983)).
3. Finally, SAFE challenges the exclusion of agricultural burning from the air pollution sources on the Coeur d§Alene Reservation that must provide EPA with annual emissions reports as arbitrary and capricious. See 40 C.F.R. § 49.138(c)(11). EPA generally explained that it exempted from the annual emissions reporting requirements ten types of sources, including agricultural burning, that §produce only de minimis levels of pollutants or would be an unreasonable administrative burden to register.§ Specifically responding to SAFE§s comment, EPA also noted its decision to use the agricultural burning permit system as the sole means of gathering data from those engaged in agricultural burning.
The APA does not impose a data collection duty on agencies, as SAFE argues, but only requires agencies to consider data related to their area of expertise when making decisions potentially informed by such data. Cf. Motor Vehicle Mfrs. Ass§n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (holding an agency must examine the relevant data during the rulemaking process). Therefore, EPA§s decision concerning how to collect data on agricultural burning § standing apart from a substantive decision on the permissibility of agricultural burning § did not violate the APA. Because the Clean Air Act lacks a requirement that EPA collect data from pollution sources on reservations, EPA§s administrative considerations in designing the data collection process are neither arbitrary nor capricious.
Petition for review DENIED.