California ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep’t of Interior

California ex rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep’t of Interior, No. 12-55856, 2014 WL 3766720 (9th Cir. May 19, 2014) (holding the plaintiffs had standing to sue and that the Secretary of the Interior did not violate the National Environmental Policy Act or the Clean Air Act when she filed an environmental impact statement on the effects of water transfer agreements on the Salton Sea in Southern California).

Plaintiffs Imperial County and the Imperial County Air Pollution Control District (“Imperial”) sued the Secretary of the Interior (“Secretary”), claiming that the environmental impact statement (“EIS”) filed by the Secretary did not comply with the National Environmental Policy Act (“NEPA”) or the Clean Air Act (“CAA”). Several California water districts, parties to the proposed transfer agreement, intervened as defendants. The United States District Court for the Southern District of California (“district court”) granted summary judgment to the defendants, finding that Imperial did not have standing to sue, and in the alternative, that the Secretary did not violate NEPA. Imperial appealed.

As a result of conservation efforts in California, water districts in the state agreed to transfer some Colorado River water from the Imperial Valley to areas in Southern California. In 2001, the Secretary prepared an EIS, which, in part, analyzed the potential consequences of the transfers on the Salton Sea. After detailing potential environmental consequences, the Secretary filed both a Final Implementation Agreement EIS and a Draft Transfer EIS in 2002. The Final Implementation Agreement EIS did not discuss subsequent minor changes to the proposed master implementation agreement—the Colorado River Water Delivery Agreement (“CRWDA”)—or changes to proposed environmental mitigation measures. After the Secretary prepared an environmental evaluation of the modifications and determined that a supplemental EIS was unnecessary, she issued a final record of decision.

First, the United States Court of Appeals for the Ninth Circuit (“court”) reviewed the district court’s determination that Imperial lacked standing to sue. Imperial asserted that the Secretary violated NEPA and the Council on Environmental Quality (“CEQ”) regulations. Imperial further argued that the Secretary should have made a CAA conformity determination because the proposed transfers would expand the Salton Sea’s shoreline, increasing airborne levels of small particulate matter. Because both of the plaintiffs’ alleged injuries were procedural, the court required Imperial to show that the Secretary violated procedural rules designed to protect Imperial’s concrete interests and that the challenged action would threaten those same interests. The court held that Imperial had standing to bring its claims. The court reasoned that the Secretary’s action sufficiently threatened Imperial’s concrete interests in land management and that both NEPA and the CAA were designed to protect Imperial’s interests.

Next, the court reviewed the district court’s finding that the Final Implementation Agreement EIS complied with NEPA and that no supplemental EIS was required. This review required the court to determine whether the Secretary reasonably evaluated the facts and took a “hard look” at the environmental impacts of the proposed transfers. Imperial first argued that it was not clear whether the Final Implementation Agreement EIS incorporated the state Transfer Environmental Impact Report (“EIR”) or the federal Transfer EIS, and that the Final Implementation Agreement EIS improperly cited the EIR. The court held that Imperial was incorrect on both claims. The court reasoned that Imperial did not identify relevant material that was solely discussed in the EIR nor significant information that the Secretary incorrectly excluded from the Transfer EIS. Further, the court determined that the Secretary’s minor mistake of citing the Transfer EIS and EIR as a single document did not prejudice the court’s review.

Imperial next argued that the Final Implementation Agreement EIS improperly tiered to nineteen non-NEPA documents. The non-NEPA documents consisted of federal statutes, state environmental impact assessments, and other Colorado River EISs. The court held that the Secretary properly tiered to these documents in the Final Implementation Agreement EIS. The court determined that the documents were cited to provide a road map of previous Colorado River projects, and the decision to tier the documents did not violate the Secretary’s obligations pursuant to NEPA.

Imperial further argued that the Secretary violated her obligations under NEPA because she cited to the Coachella Valley Water Management Plan, which was not released for public review during the comment period for the Final Implementation Agreement EIS. Imperial also claimed that the Secretary improperly stated that the Final Implementation Agreement EIS was tiered to non-NEPA documents. First, the court noted that a final EIS may include information not cited in a draft and that recirculation is only required if there are significant new circumstances or new information relating to the proposed action. The court reasoned that there were none requiring the Secretary to recirculate the Final Implementation Agreement EIS. Second, the court conceded that it would be improper for the Secretary to tier to state environmental reports in the Final Implementation Agreement EIS. However, the court held that the “tiers to” language in the Final Implementation Agreement EIS was merely a “scrivener’s error,” and that the Secretary properly incorporated by reference, and did not tier, the non-NEPA documents.

In addition, Imperial claimed the Secretary improperly incorporated by reference discussions of environmental impacts instead of providing those discussions in the text of the Final Implementation Agreement EIS, and also relied too heavily on indirect impact analysis when discussing the environmental impacts to the Salton Sea. Imperial relied on Pacific Rivers Council v. United States Forest Service to assert these claims. The court pointed out that the Pacific Rivers opinion was vacated as moot, and alternatively, distinguished the facts of Pacific Rivers from the Secretary’s actions in the present case. The court held that the Secretary acted properly because the text of the Final Implementation Agreement EIS thoroughly considered the CRWDA’s potential environmental impacts on the Salton Sea.

Imperial next argued that the Secretary improperly segmented the Quantification Settlement Agreements by preparing two EISs. The court applied the “independent utility” test to determine whether multiple actions are so connected as to mandate consideration in a single EIS, and held the Secretary did not act arbitrarily by preparing a Transfer EIS and a Final Implementation Agreement EIS. The court reasoned that the Final Implementation Agreement EIS analyzed on-river effects, while the Transfer EIS considered a separate water-transfer agreement among the districts and proposed habitat conservation programs.

Imperial also argued that the Secretary abused her discretion by finding that a supplemental EIS was unnecessary. Imperial argued that a supplemental EIS was necessary because the water districts had altered their proposed conservation strategies, but the Final Implementation Agreement EIS failed to discuss them. The court held that the Secretary did not abuse her discretion because the Final Implementation Agreement EIS reasonably considered the consequences of providing the Salton Sea with no mitigation water at all, thereby qualitatively considering the water district’s changed conservation strategies. Additionally, the court held that the Secretary’s decision to discuss only one alternative, a no-action alternative, was not arbitrary and capricious. The court cited NEPA regulations that require an EIS to rigorously explore and evaluate all reasonable alternatives, but do not detail a minimum number of alternatives. The court reasoned that there was no benefit for the Final Implementation Agreement EIS to discuss other hypothetical alternatives because the transfer plans were carefully negotiated agreements between the parties.

Finally, even though the district court did not address the claim, the court considered Imperial’s argument that the Secretary should have conducted a CAA conformity determination. Imperial claimed that such a determination was necessary because the planned transfers would increase the Salton Sea’s shoreline, thus increasing the amount of particulate matter with a diameter of ten microns or less (“PM10”) in the atmosphere. The court held that the Secretary did not violate the CAA by not performing a conformity determination. The court reasoned that neither state nor federal rules mandate the form an agency must use when announcing that a it will not conduct a full-scale conformity determination. In this case, the Secretary announced that she believed a conformity determination was unnecessary in the Final Implementation Agreement EIS, and the court agreed that the CAA did not require a stand-alone document. Both federal and state rules require a full-scale conformity determination when both direct and indirect emissions exceed the mandated level. The court held the Secretary did not abuse her discretion by concluding that the project would neither directly nor indirectly cause PM10 emissions. The project would not directly increase PM10 emissions at the Salton Sea because the proposed action would occur at diversions at the Parker and Imperial Dams—far from the Salton Sea. The court reasoned that the project would not indirectly cause an increase in PM10 emissions because the Secretary could not practicably control any resulting emissions. Rather, the State of California and Imperial would ultimately be responsible for the allocation of water to the Salton Sea, thus indirectly causing any subsequent PM10 emissions.

Accordingly, the court affirmed the judgment of the district court and held that the Secretary did not violate NEPA or CAA regulations.

 

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