895 F.3d 90
D.C. Cir.2018Background
- EPA promulgated 2008 ozone NAAQS and designated the multi-state "Philadelphia Area" (parts of DE, MD, NJ, PA) as marginal nonattainment with an attainment date of July 20, 2015.
- Under 42 U.S.C. § 7511(a)(5), EPA may extend an attainment date for one year if (A) the State has complied with SIP requirements for the area and (B) no more than one exceedance occurred in the prior year; up to two one-year extensions are allowed.
- Maryland and Pennsylvania applied for one-year extensions and certified SIP compliance; Delaware did not apply and New Jersey did not submit a certification.
- EPA granted a one-year extension for the whole Philadelphia Area, explaining that (1) "any State" may apply for a multistate-area extension and (2) EPA reasonably may rely on state certifications and, where no certification exists, on EPA’s own review for SIP compliance.
- Delaware petitioned for review arguing (a) § 7511(a)(5) requires all states in a multistate nonattainment area to apply for an extension, and (b) EPA acted arbitrarily and capriciously by relying on Maryland’s and Pennsylvania’s self-certifications and failing to show New Jersey’s compliance.
- The D.C. Circuit considered (i) whether Delaware’s comments during rulemaking forfeited judicial review and (ii) the merits (Chevron analysis and APA arbitrary-and-capricious challenges).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Delaware forfeited review by supporting EPA in comments | Delaware’s comments showed support for the proposed extension, so it should be barred from reversing position in court | Delaware’s comments were ambiguous and did not address the legal claims raised; no clear contrary position prevailed before EPA | Not forfeited — comments were equivocal and did not contradict the legal challenges raised on review |
| Whether 42 U.S.C. § 7511(a)(5) requires every state in a multistate nonattainment area to apply for an extension | "Any State" means every state in the area must apply; because DE did not apply, EPA lacked statutory authority | "Any State" means one or some state(s) may apply for the entire area; only applying state(s) must show SIP compliance | Chevron step one: "any State" unambiguously permits fewer than all states to apply; "the State" in (A) refers to the applying state(s) only; EPA had statutory authority |
| Whether EPA acted arbitrarily or capriciously in accepting state certifications and concluding New Jersey complied without a certification | EPA unreasonably relied on uncertified self-statements and did not have evidence New Jersey complied, especially given EPA’s separate finding of SIP deficiencies | EPA reasonably presumes state certifications absent contrary evidence; where no certification exists EPA may review its records (e.g., no enforcement actions) to find compliance; SIP inadequacy findings concern different requirements and approved-SIP compliance is the relevant metric | Not arbitrary or capricious: EPA permissibly relied on state certifications, reviewed New Jersey’s EPA‑approved SIP record (no enforcement actions), and acted within its discretion |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (establishing two-step framework for reviewing agency statutory interpretation)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (arbitrary-and-capricious review requires reasoned explanation)
- Burlington Truck Lines v. United States, 371 U.S. 156 (agencies must show rational connection between facts found and decision)
- South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (forfeiture where party reversed a clear, prevailing position from rulemaking)
- S. Pac. Transp. Co. v. ICC, 69 F.3d 583 (courts disfavor litigating positions opposite to those taken before agencies)
- SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (context matters in construing the word "any")