352 F3d 1186 Sierra Club v. United States Environmental Protection Agency

352 F.3d 1186

SIERRA CLUB, Petitioner, Imperial County Air Pollution Control District, Intervenor,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Michael O. Leavitt, Respondents.

No. 01-71902.

United States Court of Appeals, Ninth Circuit.

Argued February 10, 2003, San Francisco, California.

Submission Deferred February 10, 2003.

Resubmitted October 9, 2003.

Filed October 9, 2003.

Amended December 18, 2003.

David S. Baron, Earthjustice Legal Defense Fund, Washington, D.C., argued the cause for petitioner Sierra Club and submitted briefs.


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1

Thomas H. Pacheco, United States Department of Justice, San Francisco, California, argued the cause for respondent Environmental Protection Agency and submitted briefs. Thomas L. Sansonetti, Assistant Attorney General, Jan Taradash, Associate Regional Counsel, Environmental Protection Agency, and Geoffrey Wilcox also were on the briefs.

2

Rick R. Rothman, McCutheon, Doyle, Brown & Enersen, LLP, Los Angeles, California, argued the cause for intervenor Imperial County Air Pollution Control District and submitted briefs. William H. Freedman and Michael S. McDonough also were on the briefs.

3

Michael S. Rhodes, Colley Godward LLP, San Diego, California, filed a brief on behalf of amicus curiae American Lung Association of San Diego and Imperial Counties. Andrea S. Hoffman, Robert R. Veith, and Craig A. Guthery also were on the brief.

4

On Petition for Review of an Order of the Environmental Protection Agency.

5

Before: William C. Canby, Jr., Diarmuid F. O'Scannlain, and William A. Fletcher, Circuit Judges.

ORDER

6

The opinion filed October 9, 2003 is hereby amended as follows:

7

Slip. Op. at 15008, lines 10-8 from the bottom: Replace the sentence that currently reads "The best evidence adduced by EPA is the windrose from Calipatria, several miles south of Brawley, which reveals very slight south-southeasterly winds" with the following:


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8

"The evidence most supportive of EPA's position is the windrose from Calipatria, 10.5 miles north of Brawley, which reveals very slight south-southeasterly winds."

9

With this amendment, the petition for rehearing is hereby DENIED.

10

Intervenor Imperial County Air Pollution Control District's motion to stay the mandate is GRANTED until March 17, 2004 to permit said Intervenor to file a petition for certiorari with the United States Supreme Court. If before that date a petition for certiorari is filed, this stay shall remain in effect until final disposition by the Supreme Court.