NATURAL RESOURCES DEFENSE COUNCIL AND SIERRA CLUB, PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY AND STEPHEN L. JOHNSON, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS AMERICAN FOREST AND PAPER ASSOCIATION INC., ET AL., INTERVENORS
No. 04-1323
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 23, 2007 Decided June 19, 2007
Consolidated with Nos. 04-1325, 04-1328, 06-1140 On Petitions for Review of an Order of the Environmental Protection Agency
James S. Pew argued the cause for petitioners NRDC, et al.
Russell S. Frye argued the cause and filed the briefs for petitioner Louisiana-Pacific Corporation.
Thomas E. Starnes and L. Eden Burgess were on the brief for amici curiae State and Territorial Air Pollution Program Administrators and Association of Local Air Pollution Control Officials in support of petitioners.
David S. Gualtieri, Attorney, and David Gunter, Attorney, U.S. Department of Justice, argued the cause for respondent. With them on the brief were John C. Cruden, Deputy Assistant Attorney General, and Michael W. Thrift, Counsel, U.S. Environmental Protection Agency.
Claudia M. O’Brien argued the cause for industry intervenors in support of respondent. With her on the brief was Cassandra Sturkie. Brock R. Landry, Guy J. Sternal, Paul H. Amundsen, and William F. Lane entered appearances.
Peter L. de la Cruz was on the brief for amicus curiae Formaldehyde Council, Inc. in support of respondents.
Before: GINSBURG, Chief Judge, and ROGERS and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: These are consolidated petitions for review of two final rules promulgated by the Environmental Protection Agency in 2004 and 2006 under
The Environmental Petitioners—the Natural Resources Defense Counsel, the Sierra Club, and the Environmental Integrity Project (together, NRDC)—contend that EPA has failed to adhere to the statutory requirements to set emission standards for listed HAPs. They also contend that EPA exceeded its authority in creating a risk-based subcategory and in extending the deadline for complying with emission standards set by the 2004 Rule. Pursuant to EPA’s request following this court’s decision in Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007), we vacate and remand the 2004 Rule insofar as it fails to set emission standards for listed HAPs; neither the NRDC nor industry intervenors object, although each seeks an additional remedy, which we will leave for EPA’s consideration. We hold that EPA lacked authority to create a
Louisiana-Pacific Corporation also petitions for review of the two rules. It contends that EPA was arbitrary and capricious in declining to create a separate subcategory for wet/wet hardboard presses and to establish a variance procedure. Finding no arbitrary or capricious action by EPA, we deny the petition.
I.
The relevant statutory provisions and the regulatory background of the 2004 and 2006 Rules are as follows.
A.
Until 1990,
After the effective date of any emissions standard, limitation or regulation . . . the Administrator shall establish a compliance date or dates for each category or subcategory of existing sources, which shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the effective date of such standard . . . .
Congress further envisioned that there would be circumstances where a source category could appropriately be exempted (delisted) from MACT emission standards.
(B) The Administrator may delete any source category from the list under this subsection, on petition of any person or on the Administrator’s own motion, whenever the Administrator makes the following determination or determinations, as applicable:
(i) In the case of hazardous air pollutants emitted by sources in the category that may result in cancer in humans, a determination that no source in the category (or group of sources in the case of area sources) emits such hazardous air pollutants in quantities which may cause a lifetime risk of cancer greater than one in one million to the individual in the population who is most exposed to emissions of such pollutants from the source (or group of sources in the case of area sources).
B.
The 2004 Rule regulates total HAP emissions from the process units within each PCWP source. 69 Fed. Reg. at 45,946, 45,949. In view of Sierra Club v. EPA, 294 F.3d 155, 161 (D.C. Cir. 2002), which held that EPA could not set a no emission reduction standard for existing sources for listed HAPs, we need not review how EPA established the MACT floors for a source other than to note that EPA determined that the only way in which PCWP [sources could] currently limit HAP emissions was through add-on controls. 69 Fed. Reg. at 45,968.
As relevant to the petitioners’ remaining challenges, the 2004 Rule created a PCWP low risk subcategory, pursuant to
The 2006 Rule, as relevant, reset the MACT standard compliance date from October 1, 2007 to October 1, 2008. The 2004 rule had set the earlier compliance date. After the NRDC requested reconsideration of the low-risk subcategory and the delisting of sources under the 2004 Rule, EPA proposed amendments to the 2004 Rule, which concerned such matters as the definition of affected source, plywood and composite wood products manufacturing facility (among others), procedures for the low-risk demonstration process, and other permitting and timing issues. 70 Fed. Reg. 44,012, 44,014 (July 29, 2005). After receiving comments, EPA concluded that the changes to the emission testing requirements in the 2004 Rule had caused many sources to postpone emissions tests necessary to demonstrate eligibility for the low-risk subcategory and to identify their MACT compliance options. 71 Fed. Reg. at 8357-58. Therefore, EPA determined to allow PCWP sources additional time to comply with what it characterized as substantial changes to the 2004 Rule.
II.
We first address, as a threshold issue, industry intervenors’ challenge to the NRDC’s standing under Article III of the Constitution. Industry intervenors contend specifically that the NRDC failed to allege a sufficiently concrete and particularized or actual and imminent injury and thus failed to show an injury-in-fact. This contention fails.
The NRDC claims associational standing to represent their individual members. Consequently, it must demonstrate that at least one member would have standing under Article III to sue in his or her own right, that the interests it seeks to protect are germane to its purposes, and that neither the claim asserted nor the relief requested requires that an individual member participate in the lawsuit. See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342-43 (1977); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002). Such a member, therefore,
In Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 183 (2000), the Supreme Court held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity. Industry intervenors ignore this precedent. In Laidlaw, the affidavits referred to observations of pollution and alterations of behavior as a result of the risk of pollution in an affected area. 528 U.S. at 181-84. Two members of the petitioning organizations live near PCWP facilities that are exempt as low-risk facilities from all HAP controls. Holly Clark, a member of NRDC, states that she lives near the exempt facility in Rocklin, California. She monitors the air quality reports and on particularly polluted days she cuts back on her outdoor activities, including her gardening, and she does not drive her car. In the past 17 years she has seen the horizon become visibly smoggier; although she was once able to see the Sacramento skyline, she no longer can. Karen Kirkwood, a member of the Sierra Club, states that emissions from a nearby low-risk PCWP facility diminish the enjoyment that [her] family . . . derive[s] from outside recreational activities, including gardening, walking, working with animals, and sitting on the back porch. These are the kinds of harms that the Supreme Court in Laidlaw determined were sufficient to show injury-in-fact because the member-affiants use or live in areas affected by the PCWP sources, and are persons for
Therefore, because NRDC members meet the Lujan test for standing, we reject industry intervenors’ challenge and hold that the NRDC has standing to challenge the 2004 and 2006 rules.
III.
In reviewing the challenges to the final rules, our review of EPA’s interpretation of the Clean Air Act follows the familiar standard set out in Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). If Congress has directly spoken to the precise question at issue and the intent of Congress is clear, that is the end of the matter; the court, as well as EPA, must give effect to the unambiguously expressed intent of Congress. Id. at 842-43. If, however, the court determines that Congress has not directly addressed the precise question at issue, and the statute is silent or ambiguous, then the court must determine whether EPA’s interpretation is a permissible construction of the statute. Id.
A.
Following the decision in Sierra Club, 479 F.3d 875, EPA requested a remand of the 2004 Rule to the extent it failed to establish emission standards for listed HAPs. In Sierra Club, the court held that EPA’s failure to set floors for existing small tunnel brick kilns and existing and new periodic brick kilns violated
B.
The thrust of the NRDC challenge to EPA’s establishment of a low-risk subcategory is based on the proposition that EPA cannot do an end-run around the statutory scheme enacted by Congress. First, the low-risk subcategory contravenes the plain text of
EPA itself states in the 2004 Rule that [a]t the time of the 1990 Amendments, Congress did not consider it necessary to provide express relief for additional groups such as low-risk PCWP facilities, beyond those defined by traditional category and subcategory criteria. 69 Fed. Reg. at 45,990. Nonetheless EPA maintains its interpretation of its authority under
That EPA may have broad subcategorization authority, however, does not authorize EPA to sidestep what Congress has plainly prohibited. Whatever factors EPA might properly consider for subcategorization, it has no authority to create a low-risk subcategory scheme that allows harmful emissions in a manner contrary to Congress’s statutory scheme.
As a matter of the plain text, subcategory is a subset of category, as EPA has previously recognized. 64 Fed. Reg. at 56,494. Read in the context of
Because EPA’s interpretation of
C.
In the 2006 Rule, EPA extended by one year the compliance date for the emission standards established in the 2004 Rule in light of what it characterized as substantial changes made in the 2006 Rule. 71 Fed. Reg. at 8357, 8372. Only the 2004 Rule, effective September 28, 2004, set the emissions standards for PCWPs. Consequently, the NRDC contends, under the plain language of the statute, the compliance date may be no later than October 1, 2007. We agree.
After the effective date of any emissions standard, limitation or regulation . . . the Administrator shall establish a compliance date or dates for each category or subcategory of existing sources, which shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the effective date of
such standard . . . .
EPA persists that the reference in
D.
Turning to the question of remedy, consistent with Allied-Signal, Inc. v. United States Nuclear Regulatory Commission, 988 F.2d 146, 150 (D.C. Cir. 1993), in the case of an inadequately supported rule, the decision whether to vacate depends on the seriousness of the [rule’s] deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed. Id. at 150-51. See, e.g., Sierra Club v. EPA, 167 F.3d 658, 664 (D.C. Cir. 1999); National Lime, 233 F.3d at 635. As to the seriousness of the deficiencies in this case, because the CAA does not permit EPA to set a no emission reduction standard for listed HAPs, create a low-risk subcategory, or extend the deadline for sources to comply with the requirements of the 2004 Rule, EPA could not justify those choices by shoring up its reasoning on remand. The agency’s errors could not be more serious insofar as it acted unlawfully, which is more than sufficient reason to vacate the rules.
Vacatur would be disruptive if it set back achievement of the environmental protection required by the CAA. As the court explained in Davis County Solid Waste Management v. EPA, 108 F.3d 1454, 1458-59 (D.C. Cir. 1997), the more equitable and appropriate course for this court to take is to retain the . . . emission guidelines . . . on remand because
However, vacatur of the challenged provisions will not adversely affect public health or the environment. By granting EPA’s motion for a partial vacatur and remand of those portions of the 2004 Rule setting no emission reduction floors for certain HAPs for PCWP plants, there is no adverse effect on environmental protection as these provisions provide none, as the NRDC points out. See Envtl. Pet’rs’ Resp. to EPA’s Mot. for Voluntary Partial Vacatur and Remand at 1. By vacating the low risk subcategory and the compliance date extension, PCWP facilities will be subject to the other provisions of the rules, including the compliance date set in the 2004 Rule, resulting in greater protection to public health and the environment. Accordingly, we vacate the challenged provisions of the 2004 and 2006 Rules. We decline to set a two year limit on EPA’s proceedings on remand as the NRDC requests; mandamus affords a remedy for undue delay. We also decline to require EPA, as industry intervenors request, to provide affirmative relief raised in their post-brief and post-argument pleadings as these are matters for EPA’s evaluation in the first instance. Cf. Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975).
IV.
EPA followed the principle that PCWP equipment should be classified according to its function, 69 Fed. Reg at 45,948, and relied on three factors in placing the L-P facility in the same category as other PCWP facilities: (1) use of the same inputs to create its products—in particular, the same resins—as other PCWP facilities; (2) competition in the same markets as other PCWP facilities; and (3) similar levels of HAP emissions. Creating a subcategory for L-P would, EPA concluded, give L-P a competitive advantage over other facilities, Summary of Public Comments and Responses at 2-53 (Feb. 2004). L-P does not dispute that the three factors show similarity with other PCWP facilities. Rather L-P contends that it will experience greater costs in complying with the MACT floor. But cost is not a factor that EPA may permissibly consider in setting a MACT floor. See National Lime, 233 F.3d at 640. To the
L-P’s variance objection fares no better.
Accordingly, we deny L-P’s petition. We also decline to address its post-brief and post-argument request for affirmative relief. Cf. Oljato, 515 F.2d 654.