Treasure State Resource Industry Ass'n v. Environmental Protection Agency
805 F.3d 300
D.C. Cir.2015Background
- EPA promulgated a new 2010 1-hour SO2 NAAQS (75 ppb, based on 3-year average of annual 99th percentile of 1-hour concentrations) and, by August 5, 2013, designated areas as attainment, nonattainment, or unclassifiable for that NAAQS.
- Petitioners: Treasure State Resource Industry Association (challenging nonattainment designation for part of Yellowstone County, Montana) and United States Steel Corporation (challenging designation for part of Wayne County, Michigan).
- Montana collected monitoring data under a 1996 QAPP; EPA relied on those monitors (including data as far back as 2009) to designate Yellowstone County nonattainment.
- Treasure State argued EPA (a) relied on unreliable/outdated monitoring procedures (QAPP/calibration), (b) applied a newly codified "weight of evidence" approach post hoc, and (c) applied the NAAQS retroactively by using pre-promulgation data.
- U.S. Steel conceded Wayne County was nonattainment but argued EPA acted unlawfully and arbitrarily by not simultaneously designating the Monroe County area containing the Monroe power plant, which it alleged significantly contributes to Wayne County exceedances.
- Both petitioners sought reconsideration from EPA (denied); petitions for review followed in the D.C. Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA arbitrarily relied on Montana monitoring data/QAPP to designate Yellowstone County nonattainment | Treasure State: Montana's 1996 QAPP was outdated and calibrations targeted an older (much higher) standard, so the data were unreliable and EPA's reliance was arbitrary | EPA: Montana audits showed monitors performed reliably at concentrations below the 2010 NAAQS; EPA's long-standing practice and July 2013 responses show data were "robust enough" | Court: EPA's reliance was reasonable; record audits rebut unreliability claim, so no arbitrary and capricious action |
| Whether EPA's use of pre-2010 data to designate nonattainment was impermissibly retroactive under Landgraf | Treasure State: Using 2009–2012 data imposes new burdens based on pre-NAAQS conduct, so retroactive effect prohibited without clear congressional intent | EPA: Statutory design and deadlines (3-year averaging, designation deadline) made use of earlier data foreseeable; industry had long notice of potential tightening; no evidence of reasonable reliance that was disturbed | Court: No impermissible retroactivity — Landgraf factors (fair notice, reliance) counsel against finding unfair retroactivity here |
| Whether EPA erred in denying reconsideration based on 2013 data | Treasure State: New 2013 data would show attainment and warrant reconsideration/stay | EPA: 2013 data were incomplete/uncertified; permitting reopening on post-final data would frustrate statutory deadlines and finality; remedial processes exist (redesignation, clean data determination) | Court: EPA reasonably denied reconsideration — data incomplete and finality/administrative concerns justify denial |
| Whether EPA acted unlawfully/arbitrarily by designating Wayne County nonattainment without designating Monroe County (Monroe plant) that allegedly contributes to exceedances | U.S. Steel: Statute requires including any area that contributes to a nearby nonattainment area; exclusion of Monroe plant area unlawfully exposes U.S. Steel to disproportionate controls | EPA: It may follow county presumptive boundaries, uncertainty existed about Monroe's contribution (distance, intermediate monitor negative, recent scrubber controls); process for later designation exists | Court: Not arbitrary or unlawful to defer Monroe designation given reasonable uncertainty; omission not statutorily required to be simultaneous |
Key Cases Cited
- Landgraf v. U.S.I. Film Prods., 511 U.S. 244 (Supreme Court 1994) (retroactivity framework: fair notice, reasonable reliance, settled expectations)
- Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir.) (nonattainment provisions do not authorize retroactive implementation)
- Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (Supreme Court 1976) (due-process limits on retroactivity discussed)
- NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009) (§172(c)(1) requires reductions from sources within the nonattainment area; RACT focus)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Supreme Court 1992) (standing: injury in fact, causation, redressability)
- Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506 (D.C. Cir. 1983) (APA requires minimal standards of rationality for agency decisions)
- Celtronix Telemetry, Inc. v. FCC, 272 F.3d 585 (D.C. Cir. 2001) (Landgraf tests relevant to APA retroactivity issues)
- Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009) (Congress intended deadlines and finality in designation process)
- American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir. 1998) (history of SO2 standard review)
- Georgetown Univ. Hosp. v. Bowen, 821 F.2d 750 (D.C. Cir. 1987) (APA and retroactivity of agency rules)