906 F.3d 1069
D.C. Cir.2018Background
- EPA promulgated a 2010 1-hour SO2 NAAQS and issued second-round area designations in 2016, including 61 areas in 24 states. Petitioners challenged three of those designations (Wyandotte County KS; Gallia County OH; Colorado Springs CO).
- The Clean Air Act requires areas be designated attainment, nonattainment, or unclassifiable based on “available information”; SIP obligations differ for nonattainment but are the same for attainment and unclassifiable with respect to preventing significant deterioration.
- Kansas City Board of Public Utilities (Board) challenged an “unclassifiable” designation for Wyandotte County, alleging injury from uncertainty and risk of future redesignation compared to an attainment label.
- Sierra Club challenged Gallia County’s “unclassifiable” designation, asserting EPA improperly rejected Ohio’s post-comment modeling (which reduced SO2 background by 38%) and that a post-comment “mathematical fix” would show nonattainment.
- Samuel Masias challenged Colorado Springs’ “unclassifiable” designation, arguing EPA unreasonably rejected meteorological data from the Colorado Springs Airport as not representative and applied inconsistent representativeness standards across sites.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge an "unclassifiable" vs. "attainment" designation (Wyandotte County) | Board: "Unclassifiable" causes uncertainty and greater risk of future nonattainment redesignation and state controls, causing injury. | EPA: Attainment and unclassifiable trigger the same SIP obligations (prevent significant deterioration); no cognizable increased burden or traceable injury. | Dismissed for lack of standing; Board failed to show concrete, traceable, redressable injury. |
| Consideration of post-comment evidence and procedural bar to review (Gallia County) | Sierra Club: EPA improperly rejected Ohio’s April 2016 modeling (after comment period) and a simple fix would demonstrate nonattainment. | EPA/Intervenors: Sierra Club did not raise that post-comment objection during the comment period; Clean Air Act limits review to objections raised with reasonable specificity during comment; Sierra Club could have sought administrative reconsideration. | Petition denied on merits/procedural grounds: court will not consider objections based solely on post-comment materials; Sierra Club’s late objection was not properly before the court. |
| Representativeness of meteorological data and consistency across sites (Colorado Springs) | Masias: EPA failed to define "representative," applied different standards across areas, and acted arbitrarily in rejecting airport meteorological data. | EPA: Applied multi-factor guidance (proximity, terrain, exposure, period) and reasonably found airport data non-representative given elevation and wind-pattern differences; addressed commenter concerns. | Petition denied on merits: EPA reasonably applied modeling guidance and addressed alleged inconsistency; Masias’s comment did not put EPA on adequate notice of the broader inconsistency claim. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, traceable, redressable injury)
- Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 891 F.3d 1041 (standard of review for EPA designation decisions)
- Catawba Cnty. v. EPA, 571 F.3d 20 (agency must consider relevant factors; multi-factor assessments in air-designation contexts)
- Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6 (risk of enforcement/standing analysis)
- EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (procedures for raising post-comment objections and administrative reconsideration)
- Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (reviewability of agency action and reconsideration process)
- ATK Launch Sys., Inc. v. EPA, 669 F.3d 330 (multi-factor, case-by-case evaluation of data; discrete data points not determinative)
- Nat. Res. Defense Council v. EPA, 755 F.3d 1010 (agency duty to justify key assumptions)