Argued February 10, 2003. San Francisco, California
O'SCANNLAIN, Circuit Judge:
We must decide whether the U.S. Environmental Protection Agency lawfully concluded that a Southern California county would have achieved the 24-hour air quality standards required by the Clean Air Act but for the negative effects of transborder emissions from Mexico.
Imperial County encompasses approximately 4,600 square miles in Southeastern California and is bordered by Riverside County to the north, Mexico to the south, Arizona to the east, and San Diego County to the west. The county shares approximately 80 miles of border with Mexico. Calexico, one of three significant population centers in the county, sits close by the border, not far from the Mexican city of Mexicali. Moving north from the border, the county's other two major population centers are El Centro and Brawley. As of 1999, the county had approximately 142,000 inhabitants.
The Imperial Valley runs roughly through the center of the county, from the northwest to the southeast, and across its southern border into Mexico. Most of Imperial County, save for a small stretch of land on the county's eastern end, falls within the Imperial Valley Planning Area ("Imperial Valley"), and Intervenor Imperial County Air Pollution Control District
In 1987, pursuant to the Clean Air Act, 42 U.S.C. §§ 7401-7671q ("CAA" or "Act"), the U.S. Environmental Protection Agency ("EPA") adopted new national ambient air quality standards ("NAAQS") based on health studies demonstrating the harmful health effects of particulate matter.
In 1990, Congress once again amended the Act to classify areas of the country as "attainment" or "nonattainment," the former classification comprising those areas that had met the NAAQS for PM-10, the latter those that had not. 42 U.S.C. § 7407(d).
Imperial Valley was classified as a moderate PM-10 nonattainment area.
The 1990 Amendments also included a provision, CAA § 179B, which spared from § 7513(b)(2) reclassification "any State that establishes to the satisfaction of the Administrator that, with respect to a PM-10 nonattainment area in such State, such State would have attained the national ambient air quality standard for carbon monoxide
The five examples suggested by the EPA's General Preamble guidance are:
EPA prefaced these examples by noting that "the State may use one or more of these types of information or other techniques, depending on their feasibility and applicability, to evaluate the impact of emissions emanating from outside the U.S. on the nonattainment area." Id. EPA added that it "will consider the information presented by the state for individual attainment areas on a case-by-case basis in determining whether an area may qualify for treatment under section 179B." Id.
Imperial Valley's attainment date — December 31, 1994 — came and went, but EPA took no action regarding reclassification. Almost six years later, when EPA still had not taken any action, the Sierra Club filed suit in U.S. District Court for the District of Columbia to compel EPA to make a reclassification determination regarding Imperial Valley. The suit was resolved by consent decree, under the terms of which EPA agreed to make a reclassification determination for Imperial Valley by October 9, 2001.
On August 10, 2001, EPA issued a notice of proposed rulemaking ("NPR") in which it proposed "to find that the State of California has established to EPA's satisfaction that the Imperial Valley Planning Area (Imperial County) ... would have attained the national ambient air quality standards (NAAQS) for particulate matter ... by the applicable... attainment date, but for emissions emanating from outside the United States, i.e., Mexico." Clean Air Act Finding of Attainment and Alternative Finding of Nonattainment and Reclassification to Serious; California-Imperial Valley Planning Area; Particulate Matter of 10 microns or less (PM-10), 66 Fed.Reg. 42,187 (proposed August 10, 2001).
Sierra Club submitted comments opposing the proposed rule, arguing that the State had failed to make the required demonstration. Specifically, Sierra Club contended that (1) under the Act, the State was required to use a certain kind of modeling in order to make the required demonstration; (2) the emissions inventory used by the State in its model was neither current nor accurate; (3) the State had failed to show that emissions from Mexico have actually caused violations to occur at U.S. monitors, but instead had merely assumed such causation; and (4) the State had failed to account for exceedances of the NAAQS after the December 31, 1994 attainment date, let alone show that those exceedances were the result of emissions from Mexico.
Rejecting Sierra Club's challenge to the State's demonstration, EPA issued a final rule on October 19, 2001, finding that "the State of California has established to EPA's satisfaction that the Imperial Valley Planning Area (Imperial County) ... would have attained the national ambient air quality standards for [PM-10] ... by the applicable Clean Air Act attainment date, December 31, 1994, but for emissions emanating from outside the United States, i.e., Mexico." Clean Air Act Finding of Attainment; California-Imperial Valley Planning Area; Particulate Matter of 10 Microns or Less (PM-10), 66 Fed.Reg. 53,106 (adopted October 19, 2001). EPA found that the State demonstration "provides the best qualitative analysis of the emissions from Mexico possible for the Imperial County area for the period in question." Id. at 53,109. EPA concluded that
Id. at 53,107.
Sierra Club timely petitions this court for review of the EPA Administrator's decision.
"Review of agency action to determine its conformity with ... the CAA ... is governed by the judicial review provisions of the [Administrative Procedure] Act, [("APA")] 5 U.S.C. §§ 701-706." Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1021 (9th Cir.2003). Under § 706 of the APA, the court must satisfy itself that the agency action was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We have interpreted this statutory provision as requiring the agency to "articulate a rational connection between the facts found and the choice made." Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001).
We recognize that where, as here, a court reviews an agency action "involv[ing] primarily issues of fact," and where "analysis of the relevant documents requires a high level of technical expertise," we must "defer to the informed discretion of the responsible federal agencies." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); see also Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) ("When examining this kind of scientific determination ... a reviewing court must generally be at its most deferential."); Arizona Cattle Growers' Ass'n, 273 F.3d 1229, 1236 (9th Cir.2001) ("We are deferential to the agency's expertise in situations, like that here, where resolution of the dispute involves primarily issues of fact."). While our deference to the agency is significant, we may not defer to an agency decision that "is without substantial basis in fact." Fed. Power Comm'n v. Florida Power & Light Co., 404 U.S. 453, 463, 92 S.Ct. 637, 30 L.Ed.2d 600 (1972). Indeed, the Supreme Court has made clear that, in considering an agency's explanation for its action, courts "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks omitted). One example provided by the Court of such a "clear error of judgment" sufficient to constitute arbitrary and capricious agency action is when "the agency offer[s] an explanation that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id.
At oral argument, we questioned counsel for EPA about two specific dates, January 19 and January 25, 1993, on which exceedances of the 24-hour PM-10 standard were recorded at Brawley, twenty-one miles north of the County's border with Mexico. Examining the evidence produced by the State, EPA agreed with the State's assertion that these exceedances likely were caused by wind-borne PM-10 from Mexico. Sierra Club challenged this conclusion — both in its briefs before this court and at oral argument — by noting that the wind data on those two days do not comport with the theory of cross-border transport of PM-10. Specifically, on January 19 and January 25, 1993, the winds in Imperial County show significant — even predominately — westerly components. That is, the winds were largely out of the west. Given that Brawley is, obviously, north of the Mexican border — and northwest of Mexicali, the Mexican city alleged to be the principal source of transborder PM-10 — Sierra Club argues that it is highly unlikely that such exceedances could be attributed to emissions from Mexico. Sierra Club buttresses its
There was some uncertainty at oral argument — neither the parties nor the record provided an answer — as to whether either or both exceedance days were sufficient, standing alone, to constitute a violation of the 24-hour PM-10 NAAQS. To put it another way, the question is: If the wind-borne emissions from Mexico did not cause either or both of such exceedances, must the panel grant the petition and vacate EPA's finding?
We ordered supplemental briefing on the matter. The parties' supplemental briefs informed us that the Brawley monitor sampled the air quality only on every sixth day. In order to determine whether the two recorded exceedances constituted a violation of the 24-hour NAAQS for PM-10, which allow only for one exceedance per year of the 24-hour standard in a given area, the actual number of exceedances is adjusted to take account of the days that are not sampled. The adjustment is made according to a formula set forth at 40 C.F.R. Part 50, Appendix K. Applying this formula to the two recorded exceedances at Brawley reveals that the expected number of exceedances of the 24-hour standard is 4.3 days per year, far above the one day exceedance allowed under the NAAQS. Applying the formula to only one of the two days in question results in exceedance of the 24-hour standard on 2.14 days per year. Thus, both parties agreed in their supplemental briefs that either one of the two recorded exceedances would have been enough to trigger a violation of the 24-hour PM-10 NAAQS. EPA continued to assert, however, that the cause of both exceedances was emissions from Mexico and thus, Imperial Valley would have attained the 24-hour standard but for such emissions.
We disagree. The pattern of recorded PM-10 levels on January 19 and January 25, 1993, does not comport with the State's theory that emissions from Mexico — and Mexicali in particular — caused the Brawley monitors to exceed the 24-hour NAAQS for PM-10. We believe that EPA's conclusion that Imperial Valley would have satisfied the 24-hour standard but for emissions from Mexico "runs counter to the evidence" before the agency concerning the exceedances at Brawley. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. As noted above, the data upon which EPA relies show winds trending, at best, in a southwesterly direction, but even then only nominally so. The windroses, meanwhile, show a similar west to southwesterly component. The best evidence adduced by EPA is the windrose from Calipatria, several miles south of Brawley, which reveals very slight south-southeasterly winds. But that same windrose shows stronger winds from the northwest. At oral argument, counsel for EPA had no explanation for the decided lack of southerly winds on the days in question, but nevertheless insisted that the data showed winds with a southerly component. There are two problems with counsel's assertion, which was reiterated in EPA's supplemental brief. First, EPA's notion of what constitutes a southerly wind in the windroses is, at the least, expansive and, at most, positively incorrect. Second, the "southerly component" EPA professes to locate in the wind data would appear to be inconsistent
Although the normal course of action when the record fails to support an agency's decision "is to remand to the agency for additional investigation or explanation," Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), both Supreme Court and Ninth Circuit precedent acknowledge the propriety of remanding with instructions in exceptional cases. See, e.g., id. ("except in rare circumstances"); Alvarado Cmty. Hosp. v. Shalala, 155 F.3d 1115, 1125 (9th Cir.1998) as amended by 166 F.3d 950 (9th Cir.1999) (remanding with instructions to recalculate Medicare service provider reimbursements using newly-available data); Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996) (remanding with instructions to award Social Security benefits because "the record has been fully developed and ... further administrative proceedings would serve no useful purpose"); see also Sierra Club v. EPA, 311 F.3d 853 (7th Cir.2002) (remanding with instructions where the EPA had exceeded its statutory authority by granting a nonattainment exception on statutorily-unenumerated grounds).
We think this is such a case. Based on the data and the reports in the record, there simply is no possibility that Mexican transport could have caused the observed PM-10 exceedences on January 19 and January 25. We fail to see how further administrative proceedings would serve a useful purpose; the record here has been fully developed, and the conclusions that must follow from it are clear. We therefore GRANT the petition, VACATE the order, and REMAND WITH INSTRUCTIONS that the EPA classify Imperial Valley as a "serious" nonattainment area.