684 F.3d 1342
D.C. Cir.2012Background
- EPA promulgated a final one-hour primary NAAQS for nitrogen dioxide of 100 ppb in 2010.
- The petitioners challenged the NAAQS as arbitrary and capricious under 42 U.S.C. § 7607(d)(9)(A).
- The EPA’s decision rested on the ISA, REA, and external CASAC review, with the CASAC advising a 100 ppb ceiling.
- The API opposed reliance on an unpublished meta-analysis and questioned the Goodman study and other evidence.
- The court held the adoption of the NAAQS was not arbitrary or capricious, but dismissed challenges to a non-final preamble statement about permitting for lack of jurisdiction.
- The case was dismissed as to the preamble statement regarding permitting, while the NAAQS adoption challenges were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA’s NAAQS was arbitrary or capricious | API argues EPA relied on unpublished meta-analysis | EPA contends record supports health-based standard | No; EPA’s adoption not arbitrary or capricious |
| Whether EPA properly treated Goodman study | Goodman study undermines EPA conclusions | EPA explained methodological limits and did not rely on it | No; EPA adequately explained treatment and reliance on multiple sources |
| Whether EPA’s use of the Schildcrout study was inconsistent | EPA applied different treatment across NO2 and ozone reviews | Agency's rationale was rational and consistent | No; rational explanation given for inclusion in review |
| Whether EPA erred in relying on alternate scenarios in REA | EPA should only compare to the most accurate forecast | EPA used reasonable, precautionary comparisons including ‘as is’ and ‘just meets’ | No; EPA’s comparison supported the standard under the Act |
| Whether the preamble statement about permitting had finality and jurisdiction to review | Preamble constitutes final action enabling review | Preamble is non-final, not reviewable | Lacks jurisdiction; preamble statement not final agency action |
Key Cases Cited
- Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) (agency analysis must weigh weight of evidence; not arbitrary)
- Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (U.S. 2001) (notions of ‘not lower or higher than necessary’ with adequate safety margin)
- Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191 (D.C. Cir. 1996) (binding effect of finality in agency commitments)
- Portland Cement Ass’n v. EPA, 665 F.3d 177 (D.C. Cir. 2011) (jurisdiction over final agency action under CAA state review)
- Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512 (D.C. Cir. 2009) (err on the side of caution; prudential assessment of standards)