*1 vacated, Id. be actions here must be and bursement. And while there could the is- which the it agency cases in finds agency sues remanded to the for further general prioritiza from must deviate its explanation. or action tion, agency “adequately must define the IV. Conclusion ‘trigger’ case-
the circumstances that the analysis,” the must by-case agency above, the For reasons set forth an “identifiable standard” promulgate to deny vacate TSA’s decision reimburse- Oceana, Inc. guide those determinations. ment to American pro- Terminal 8 (D.C.Cir. Locke, v. ject and to TSA for pro- remand further Rather, done TSA has not so. ceedings opinion. consistent with this stated list it prioritization TSA has ordered. So merely “top-down” “initial created is a guide,” it expressly has reserved depart
discretion to from the list on a case- different,
by-case using a “bottom- basis
up” methodology making when actual funding provision decisions. Like the at ASSOCIATION, PORTLAND CEMENT Oceana, Inc., an issue in TSA cannot make Petitioner exception prioritization vague to the list so v. meaning “as to large make rule ENVIRONMENTAL PROTECTION less,” id., prio nor can promulgate TSA AGENCY and Lisa Perez act ritization list and to it contrary then Jackson, Respondents previously based on unannounced factors. Ultimately, TSA’s decision here be must Cape Watch, Fear River agency vacated either because the improp al., et Intervenors. erly from provided prioritiza deviated its Association, Portland Cement agency tion list or because the has failed to Petitioner prioritization make a com list would port mandates the 2007 Act. v.
[[Redacted]] Agency Environmental Protection And Jackson, Respondents Lisa Perez If purports TSA to consider the prioriti- merely starting zation point list for mak- Utility Group, Solid Waste Activities ing funding determinations based on other al., et Intervenors. criteria, has sufficiently it failed to estab- 10-1358, 10-1363, 10-1366, 10-1367, Nos. departing lish and follow criteria for from 10-1369, 10-1373, 10-1374, 10-1376, 10- rule, general its rendering prioriti- thus 1379, 11-1012, 11-1244, 10-1359, 10- Inc., Oceana, zation inadequate. list See 1361, 10-1364, 10-1365, 10-1368, 10- at 1241. F.3d If instead we consider 1370, 10-1372, 10-1375, 10-1377, 11- prioritization provided list [[Redacted]] 1245. fide, to the Court to be the complete bona prioritization already list accounting Appeals, United States Court of “risk other relevant factors” mandated District of Columbia Circuit. Act, note, by the 2007 Argued 2011. Oct. simply then TSA failed abide Decided Dec. 2011. making acting this decision and thus is to the contrary statute. See 5 U.S.C. 706(2)(A). case, agency’s either *4 Phillips G. argued
Carter the causes for Industry Petitioners on NSPS and NESH- AP Issues. With him the on briefs were Martella, Jr., Roger Timothy R. K. Web- ster, Jennings, E. Deborah Richard G. Stoll, S. T. Ginsberg, Morgan, Beth Jason Bumpers, Jezouit, M. William Debra J. Parrish, Ashley Cynthia Stroman, A.M. C. Thompson. M. Howard Chet L. Gil- berg Roger J. ap- Marzulla entered pearances. D. Doniger argued
David the cause for *5 Environmental and Petitioners State In- tervenors on NSPS Issues. With him on Geertsma, were the briefs Meleah Timothy Bailo, D. Joanne Spalding, Marie and Craig Segall. Holt Harris, Attorney General, D. Kamala the Attorney Office of for General California, Heller, State of Thomas G. General, Deputy Attorney John Kroger, General, Attorney Attorney Office of the Oregon, for the General State of Paul Lo- gan, Attorney Charge, Assistant in Oregon Justice, Department of M. Robert McKen- na, Attorney General, Office of the Attor- of ney Washington, for the General State Seffern, and R. Attorney Leslie Assistant General, were on the for brief state inter- California, support et of venors al. Envi- Durbin, ronmental L. Petitioners. Susan Attorney Office Attorney, of the General California, ap- for the of entered an State pearance.
Julie A. Weis was on the brief for amici City County, curiae Baker and Baker Ore- gon, support petitioners. et al. of Frye S. was on the brief for Russell in support amicus curiae SSM Coalition petitioners. Monique Peoples
T. Daniel R. Dert- and ke, Justice, Attorneys, Department U.S. respondents arbitrary capricious. on the CAA and are the causes argued in- groups them A of environmental Issues. With consortium and NESHAP NSPS (“Environmental cluding Silverman and the Sierra Club the briefs were Steven on Petitioners”) Zenick, Counsel, argu- their petition, filed own U.S. Environmen- Elliott ing by de- abused discretion Agency. tal Protection clining greenhouse gas to include emis- argued cause for Phillips Carter G. sions in its rule. standards NSPS Industry .support respon- Intervenors below, For the reasons set forth Roger him the briefs were dents. With on agree arbitrarily acted when Webster, Martella, Jr., Timothy K. R. the final rule and promulgated NESHAP Stoll, Jennings, E. Richard Deborah G. petition grant therefore PCA’s for review T. Ginsberg, Morgan, Jason Wil- Beth S. EPA’s respect denial of reconsider- Jezouit, Bumpers, Debra J. liam M. Nor- stay ation issue. on We also Fichthorn, Wood, D. Allison Ash- man W. storage clinker Parrish, Stroman, ley Cynthia C. A.M. piles pending reconsideration EPA. We Green, Thompson. Douglas M. H. Chet deny petitions with to all respect PCA’s Wallisch, Aaron J. and Willian R. Weiss- relating other issues to NESHAP appearances. entered man NSPS, Peti- and dismiss Environmental Bailo, Gisler, Timothy Geoffrey D. R. jurisdiction. for lack petition tioners’ Pew, Johnson, L. James S. Seth Avinash Kar, Geertsma, Meleah and John D. Walke I on the were briefs Environmental Inter- *6 cement, powder a gray Portland fine support in of T. respondents. venors John concrete, used construction-grade to make Suttles, Doniger D. Jr. and David entered produced by combining is raw materials appearances. a kiln heating produce and the mixture to “clinker,” a called is then substance which HENDERSON,
Before: TATEL and ground powder. cooled and into This kiln BROWN, Judges. Circuit firing process causes the airborne emission Opinion for the Court filed PER (“PM”), particulate of matter as well as a CURIAM. dangerous number of other chemicals. Once produced, the clinker is stored Concurring by opinion filed Circuit piles may also which continue to emit some Judge BROWN. hazardous chemicals. PER CURIAM: types portland There are three basic of first, (“CAA”), Pursuant to Air Act “long the Clean cement kilns. The called wet” kilns, the Agency “long dry” process Protection en- or are the least Environmental kilns, setting acted twin in 2010 rules emissions efficient. These which tend to be older, for portland they cement heat raw simply facilities— materials as one under a pass through large rotating cylinder. section called National Emis- kiln, sion Standards for Hazardous Air The of type “preheat- Pollu- second called a (NESHAP), 7412(a)(4), er,” § tants is modern Pre- more and efficient. preheat by the second under a section New heater materials called kilns raw the (NSPS), passing through Source Performance Standards first them a tower filled Petitioners, § gases. Finally, id. 7411. most Portland Cement hot exhaust the kilns, Association and other cement manufactur- modern preheater/pre- and efficient (“PCA”), kilns, argue equipped pre- ers that both are with both rules violate calciner and a vessel heater towers combustion the floor to be set based on the amount materials a high temp- which heats raw at by emissions reduction achieved they performing erature before reach the core best five sources which the kiln, removing moisture and undesirable Administrator has emissions information. compounds. Ultimately, of kiln type Id. NESHAP emissions standards “shall directly the amount stringent affects of uncontrolled not be less than” this floor. Id. pollutants example, long Second, For wet may go emitted. “beyond-the-floor” long dry kilns process if, emit between and set a more stringent standard tak- eight to ten times the amount sulfur ing account, cost and other into factors dioxide as kilns. preheater/precalciner determines that such a standard would be 7412(d)(2); § “achievable.” Id. see also CAA, separate Two sections of the Cement Kiln Recycling Coalition v. § seg., require pro- U.S.C. 7401 et EPA to (D.C.Cir.2001) (de- 857-58 mulgate emissions standards for “station- scribing two-step regulatory frame- ary pollution sources” of such cement as work noting apply “floors” “with- first, NESHAP, kilns. The requires out regard to either or costs ... other to set emissions standards for both new factors,” that EPA may but set limits “be- 7412(a)(4); § and existing sources. Id. yond-the-floor” if it takes cost other (a)(10). second, NSPS, requires The account). factors into promulgated The to set emissions standards for new and NESHAP standard is as known the “maxi- (A newly-modified sources. Id. 7411. mum achievable technology” control or source, for purposes “modified” of the “MACT.” CAA, undergone is a source that has physical operational change NSPS, in- however, “which Under EPA is required any creases the amount of air pollutant to set standards for emissions that “re- source, emitted such or which degree results emission flecte] limitation any pollutant previ- the emission air through achievable application of the 7411(a)(4)). ously Thus, emitted.” Id. system best of emission reduction.” 42 *7 although 7411(a)(1). and overlap NESHAP NSPS as U.S.C. In contrast sources, to regulation newof NESHAP two-stage NESHAP’s process, under governs regulation alone the existing of prohibited which EPA from considering sources, cost, and governs reg- NSPS alone the achievability, or countervailing con- ulation of modified sources. one, at step siderations requires NSPS EPA into take account the “cost of achiev- Pursuant to CAA Section EPA sets ing” reductions, emissions as well as NESHAP two-stage emissions limits in a health, environmental, energy consid- process. First, EPA sets what it calls a 7411(a)(1). §Id. erations. sources, “floor.” new For the floor is equal to the amount of emissions reduction In June EPA initiated two rule- “achieved in practice the best making controlled procedures to revise emissions 7412(d)(3). similar source.” U.S.C. for portland standards the cement indus- sources, existing For equals try: the floor under one NESHAP and one under amount of emissions reduction “achieved Following period, NSPS. a comment these average] by [on the best performing rules were finalized in September 2010. (for percent existing rule, sources which In the NESHAP EPA set standards the Administrator has emissions informa- for new sources and existing sources for tion)” in category. PM, the source If the hydrochloric Id. emissions of mercury, category sources, acid, hydrocarbons. contains fewer than 30 go EPA did not from cement these are additional information facili- so standards
“beyond-the-floor,” Be- respective floors. ties. Id. equal to instead entirely rulemaking place took at cause the sought PCA administrative reconsidera- step, EPA did not— the first tion of both the NESHAP NSPS into step at that it could not because —take petitions rules. EPA denied PCA’s for considerations. or other account cost on all but two reconsideration issues. First, petition EPA rule, granted PCA’s for re- for the first In the NSPS regulations of emissions for consideration time, for both new and modi- set standards storage piles, holding outdoor clinker nitrogen emissions ox- sources for fied addition, “petitioners Agency are correct and sulfur dioxide. ide give notice of what [clink- did sufficient NSPS emissions stan- existing revised storage might pile] er standards be.” 76 PM, a limit of setting pounds for 0.01 dard 28,318, 28,325 Fed.Reg. (May produced. ton of clinker per PM emitted Second, petition granted PCA’s for this PM stan- EPA concluded that revised PM if reconsideration of the NSPS emissions kilns installed a dard was achievable Although standards for modified sources. particular pollution control technol- type of stay PCA asked EPA to both standards bags. with membrane ogy: fabric filters reconsideration, EPA pending declined to include emissions declined do so. for carbon dioxide or other standards filed subsequently peti- PCA the instant greenhouse in its final NSPS rule. gases tions for rules review of both the them- its decision to omit such stan- Explaining selves and EPA’s denials reconsidera- dards, EPA noted because it had tion. Environmental Petitioners filed their specific no emissions standard proposed petition own challenging EPA’s decision gases proposed greenhouse greenhouse gas not to include emissions a stan- regulations, “promulgating such standards in its final rule. NSPS PCA providing opportunity dard without intervened on behalf of EPA on this issue. on it comment would violate of notice and comment rulemak- norms II 54,970, 54,996 Fed.Reg. (Sept. ing.” 75 2010). Moreover, although establishing “pre- EPA’s While was case, liminary may “it be NESHAP at issue in this evaluation” indicated Agency simultaneously developing for the a stan- it was appropriate set defini performance greenhouse gas- tion of and industrial dard commercial solid *8 (“CISWI”). es,” it yet EPA determined that did “not waste incinerators This defi nition a adequate green- separate category have information about would create pollutant subject to set gas house emissions a standard.” sources emissions 54,996-97. Id. at standards from NESHAP. then identified distinct This specific it types pertinent rulemaking process, information which described NESHAP, lacking, was such as information about as “relevant” to would impact greenhouse gas rulemaking emissions from cement the NESHAP because some plants secondary site-specific that could cement kilns “combust materi factors performance affect the of emissions con- als solid as alternative fuels.” [like waste] 54,997. subject by at Such kilns be trols. Id. concluded would it rales rather than stating “working was towards under under CISWI rules, standards,” regimes greenhouse gas for the NESHAP since the two proposal Fed.Reg. 21,- promulgate receiving mutually which it after are exclusive. would 136, 21,138 6, 2009); (May see modifying also time the dataset to change that 7429(h)(2) (requiring exclusivity); premise. U.S.C. agree We it is arbitrary and capricious.2 Natural Res. Council v. Def. (D.C.Cir.2007) (same). F.3d 1260-61 reaching merits, Before we must EPA proposed the CISWI definition ten decide whether jurisdiction. we have PCA months after the close of the NESHAP cannot challenge the directly. rule Before period comment but three months before objection an Court, can be raised this it final NESHAP rule was issued. The must be “raised with reasonable specificity CISWI definition was enacted six months during period public for comment.” after the NESHAP rule became final. 7607(d)(7)(B). PCA did not comment on this issue in argues
PCA the NESHAP improperly ig- rulemaking, so even if agreed we ongoing nored this process CISWI when it merits, PCA on the we could not vacate set the NESHAP standards. EPA real- However, the NESHAP rule. “[i]f ized the potentially CISWI definition could person raising objection an can rule, demon- impact the NESHAP since under the strate ... impracticable was definition, proposed reclassify could objection raise within [an] [the comment close to a third of all cement out kilns period] grounds or if the objec- (In [the] fact, and into CISWI.1 PCA tion arose after period public com- notes that some of the performing best ..., ment the Administrator shall convene sources central the setting of the proceeding for reconsideration of the NESHAP floor are excised from the rule.” If denied, Id. reconsideration is altogether NESHAP universe under the review of the Administrator’s refusal rule.) new CISWI But EPA was uncon- “in available the United States court of cerned that floor-setting its NESHAP cal- appeals for the appropriate circuit.” Id. might culations include sources that actu- Although it very is a question, close ally subject would not be to the NESHAP are satisfied PCA could not have reason- standard completed. once the rules were ably anticipated the extent to which EPA treating Instead of the two truly rules as would base the final NESHAP standard interdependent acknowledging efforts and on data from kilns it reclassify would soon correlation, their close EPA let run each mutually into a different —and exclusive— regardless its own course of the collateral regulatory regime. Because EPA refused impact. argues PCA that it both violated rule, to reconsider the jurisdiction we have arbitrary CAA and was capricious to review that refusal. for EPA to have set the NESHAP stan- dard on the premise that all proposed rule, kilns would be In its EPA acknowledged subject to NESHAP while at the same the CISWI rulemaking ongoing was 1. ultimately The final CISWI provisions definition reclas- requiring standards. The EPA to disagree sified fewer PCA sources. and EPA set NESHAP standards based on emissions as to the number: EPA’s most recent estimate reductions achieved similar sources within *9 percent is that closer to 16 were reclassified. category, 7412(d)(1), § the same NESHAP id. 28,318, 28,322 17, Fed.Reg. 2011). (May (d)(3), hand, on the other come closer to being implicated here. But at the time EPA provision 2. EPA did not the violate of the CAA standards, set the NESHAP all of sources stating that "no solid waste incineration unit it category. examined were within the same subject performance to [CI- standards under approach While we find EPA’s ostrich-like to subject shall SWI] be to standards under recategorization its arbitrary, efforts was it [NESHAP],” 7429(h)(2), 42 U.S.C. because did not violate the text of the CAA. actually subjected no unit has been to both it would re- steps, suggested next it kilns at its number of unknown some
noted after the standards as CISWI evaluate the NESHAP ultimately be classified might know yet not promulgated. EPA did definition was Because CISWI sources. take, rule would shape the CISWI what continue to that PCA is not
however,
Having
said it would
determined
“un-
sources
petitioning
no kilns were CISWI
from
jurisdictionally
assume
barred
promul-
...
is
definition
may
til the solid waste
it
and that
EPA for reconsideration
21,138
21,136,
(May
Fed.Reg.
gated.” 74
in
of
review
this Court
therefore seek
2009).
open a
statements left
These
denial,
of
proceed
we
to the merits
EPA’s
First,
re-sorting
couple
possibilities.
of
proposals,
EPA’s
objection.
none of
was,
likely,
while
into
of some kilns
CISWI
rules,
in
has EPA
final
or briefs
this Court
(“EPA
cannot
therefore
inevitable. Id.
that, in
principle
to defend the
attempted
this time if the sec-
at
reliably determine
final
CISWI
promulgated
the face of a
by cement
combusted
ondary materials
definition,
kilns could
data from CISWI
wastes.”);
as solid
to be classified
kilns are
setting
considered in
NESHAP
now be
Planning and
Quality
Air
Office of
see also
it would cer
rightly
standards. And
so:
Standards,
of the MACT
Development
tainly
arbitrary, as well as a violation of
be
NESHAP for
Proposed
Floors for
itself,
one stan
for EPA to set
the CAA
2009) (“Pend-
(Apr.
Portland Cement
already placed in an
dard based on data
rulemakings,
of other
ing the outcome
category
light
of the mutu
other source
that some of the kilns
possibility
is a
there
exclusivity
the standards themselves.
al
Portland Cement NESH-
currently
North Carolina v.
See
point
will at some
category
AP source
(D.C.Cir.2008)
it
(noting that
is “en
regulation,
subject to the [CISWI]
become
“ir
standards on
tirely arbitrary” to base
subject
regula-
to this
longer
and thus no
7412(d)(1),
factors”);
relevant
added).
tion.”)
Second, EPA’s
(emphases
(d)(3)
EPA to set NESHAP
(requiring
solid
language
conditional
—“until
based on emissions reductions
promulgated”
sug-
...
definition
waste
—
within the
achieved
similar sources
that,
any
ultimately fall
should
kilns
gested
category).
same NESHAP
definition, EPA would
under the CISWI
accordingly.
rule
adjust the NESHAP
defends the otherwise inde-
instead
circum-
by claiming
unique
fensible
require
degree
some
certainly
While
rulemaking left no
parallel
stances of this
commenters,
part foresight
on the
As EPA said
the final
other choice.
require telepathy.
should
we do not
We
rule,
pre-
it “cannot
because
require
reluctant
advo-
especially
be
recently pro-
outcome of the
judge the
groups to
for affected industries and
cates
rulemaking” and because it
posed [CISWI]
every contingency. To hold
anticipate
as to
only
all determinations
“bas[e]
could
strategic
encourage
would
otherwise
the emissions infor-
source classification on
agencies
vagueness
part
on the
available,”
simply
had to
mation now
defensive,
commentary on
overly
excessive
“all
cement kilns as
portland
include
parties seeking
interested
part
subject
regulation
[NESHAP].”
under
options
appeal.
all
preserve
possible
54,970, 54,972 (Sept.
Fed.Reg.
adminis-
response
Neither
well serves the
argument here: a
the same
made
warning EPA
process.
trative
Whatever
subject
of sources
substantial number
vague
too
regarding
offered
CISWI was
sources were
being
as CISWI
trigger
response
reclassified
and noncommittal to
*10
be-
Indeed,
in the NESHAP calculation
hint
included
from
as far as
did
PCA.
187
yet
precise
nothing
cause EPA had not
decided the
long
“so
as no final definition of
parameters of its definition.
solid waste changed
status
[the]
[of ce-
ment
prior to promulgation
kilns]
of
Basing
premise
its
on a
decision
NESHAP.”
(emphasis
EPA Br. 25
add-
already
agency
planned
itself has
to
ed). This is not a “satisfactory explana-
disrupt
arbitrary
capricious.
is
and
Rea
tion,”
Farm,
43,
State
U.S. at
463
103
requires
agency
soned
an
decisionmaking
2856,
S.Ct.
or a “hard look at the salient
to “examine the relevant data and articu
problems,”
E. Pipe
Panhandle
Line Co. v.
satisfactory explanation
late a
for its ac
FERC,
435,
(D.C.Cir.1989).
890 F.2d
439
Motor
Ass’n
tionfs].”
Vehicle
v.
Mfrs.
It is nothing more than a determination
Co.,
State Fam Mut. Auto. Ins.
463 U.S.
problem
would not address the
29, 43,
2856,
103
77
S.Ct.
L.Ed.2d 443
unless it happened
appear
at an incon-
(1983).
impending
The
definition of an
venient
eventuality
time—an
over which
undeniably
source category
related
EPA had full control. The refrain that
clearly a “relevant
or an “impor
factor[ ]”
EPA must
rules
promulgate
based on the
tant aspect
problem”
of the
that must be
currently
information it
possesses simply
Indeed, EPA
considered.
Id.
stated as
cannot excuse its reliance on that informa-
rule,
much in
proposed
describing
tion when
process
its own
is about to ren-
CISWI
“relevant”
rulemaking as
to the
der it irrelevant.
21,-
74
proceeding.
Fed.Reg.
makes two
136,
arguments
response,
21,138
6,
(May
neither of which addresses this basic prin-
agencies
obligation
Since
“have an
First,
ciple.
EPA insists that it would be
acquired
to deal with newly
evidence in
require
absurd to
revised calculations ev-
fashion,”
some reasonable
Cnty.
Catawba
ery time the
content of
source category
(D.C.Cir.2009),
v.
F.3d
ie.,
changes,
when
source
closes or a
approaches
“reexamine”
“if a sig
their
new source is built. EPA Br. 26. But no
nificant
predicate” changes,
factual
Bechtel
absurdity
such
is involved here. No ac-
FCC,
(D.C.Cir.1992),
v.
957 F.2d
regulated
tions
community changed
an agency must
a similar obligation
have
calculations;
the dataset relevant
EPA’s
to acknowledge
account for a changed
and
EPA’s definition did that. And EPA un-
regulatory posture
agency
creates—
dermined the
premise
its calculations at
especially
change
when
impacts
a con
the same time it
enshrining
was
those
temporaneous
closely
related rule-
in a final
calculations
rule —without ac-
making. See
Commc’n
Office
counting
impact
for the
of the change.
It
FCC,
United
v.
Church Christ
is not
require
agency’s
absurd to
that an
(D.C.Cir.1983)
1441-42
(finding it
right hand take
of what
account
its left
“seriously
disturbing”
beyond
“almost
doing.
fact,
hand is
nothing
this is
new:
belief’ that an agency would take rule-
this Court
required
has
to recalculate
making
undercutting
action
another “con
changes
standards because
to category
process);
current” rulemaking
see also
definitions
populations
when “the
of units
States,
Corp.
Gen. Chem.
v. United
subject
rules
change
will
[exclusive]
(D.C.Cir.1987) (finding agen
F.2d
Council,
substantially.” Natural Res. Def.
cy
arbitrary
capricious
action
because
188 period comment for the NESH- delay would after the a EPA insists such waste. justifying from AP rules had closed. Far quality air harmful to been have conduct, unique circumstances EPA’s But rea Perhaps. 27. EPA Br. health. rulemaking are what doom parallel of this dispensable not a decisionmaking is soned simultaneously in agency an is it: when machine that the administrative part of universe of defining control of both pursuit in even blithely discarded can be applying that data to relevant data and impor “The goal. regulatory a laudable allow itself to rulemaking, a it cannot given in an decisionmaking tance of reasoned already done having the latter do without overemphasized. be action cannot agency say fail- agency If an can its the former. with discre is vested agency anWhen justi- to decide what data are relevant ure entity’s an on impose restrictions tion data, just all fies its decision to consider business, age freedom to conduct n be arbitrary capricious review would in a well- that discretion cy must exercise put EPA has the cart before pointless. reasoned, consistent, and evenhanded horse, justification, there is no ICC, Corp. v. 668 Greyhound manner.” choices, agency’s timing least of all an own (D.C.Cir.1981). EPA also F.2d and unscientific atti- for such cavalier dead facing NESHAP notes that it was tude. agreement a settlement pursuant line course, PCA, it could have but final points out that CISWI much sooner. begun process the CISWI promulgated a mere six definition — all, on the working EPA had been
After in after NESHAP —resulted about months it years, for ten and so NESHAP rule reclassified, being kilns and that remov- that the surprise as no should have come ing these kilns from the NESHAP calcula- play a critical role definition would CISWI the ultimate stan- tions does little to relax It takes a certain setting that standard. fact, In one emissions standard dards. claim it chutzpah amount stringent become more after would even years ten had no time to be careful—after removing the kilns from the data CISWI it waited to work on NESHAP' —when of. have no reason to doubt that set. We until after the propose a CISWI definition conclusion; perhaps would be better PCA closed. It period NESHAP comment had they brought off had this issue to our repeat chutzpah takes even more attention. But we are not interested already court has claim after the district or whether the rule becomes more less argument “silly” closely in a called prov- Our stringent upon reconsideration. analogous context. Am. Petroleum Inst. simply agencies to ensure that do ince is Johnson, F.Supp.2d v. arbitrarily capriciously, not act (D.D.C.2008) (“The proposed fact that the 706(2)(A), magnitude and the or di- years for ten rule had been on shelf agency’s rection of the effect of an arbi- failing directly to consider a no excuse it. trariness does not excuse intervening legal change “decid relevant” EPA violated the argues PCA also promulgat final rule was ed before the premised the NESHAP stan CAA when ed.”). than dards on bare emissions data rather specifically on data that isolated the effect Simply put, there was no CISWI technology by controlling for variations definition when the NESHAP rule was re because, input quality. We considered and though finalized even EPA knew quite recently. pro jected very argument this it would be critical to the NESHAP cess, v. not even it until Sierra Club propose did
189 (D.C.Cir.2007), we declined to read the nomic infeasibility” of installing CEMS. 40 63.8(f)(4)(ii). Air “the Clean Act’s command that it § as- C.F.R. Similarly, pro sess the emission ‘control’ or ‘limitation’ posed provided adequate NESHAP rule refer[ring] [as] ‘achieved’ to the deliberate notice that EPA considering was modify steps operators kiln take to ing reduce emis- emissions standards startup for and ‘happenstance’ sions rather than to the periods, shutdown and PCA commented on being Instead, located near clay.” cleaner 21,136, 21,162 that as well. 74 Fed.Reg. 2009). exactly 6, we held that EPA must do (May what it final PCA’s claims of arbi did here. Id. attempt PCA’s dismiss trariness also fail since EPA adequately holding unavailing this as dicta is explained for, since the its reasons among other question of how to account for raw materi- things, not setting separate hydrocarbon case, quality “clay type” al standards for dryers. raw material Noth —in —was squarely presented. Id. at 882-83. ing CAA our caselaw requires EPA to collect additional data before mak carefully We have considered ing that decision. See Sierra Club v. EPA objections PCA’s other to the NESHAP 658, (D.C.Cir.1999) 167 F.3d 662 (noting rule and are unconvinced them. PCA’s that EPA “typically has wide latitude in argument that EPA’s pollutant-by-pollu determining the extent of data-gathering tant approach setting NESHAP floors necessary to a problem”). solve violates the CAA is barred because it was Because EPA’s treatment of sixty days within the CI- raised of EPA’s first SWI-NESHAP interaction was approach, arbitrary use of that Medical Waste Inst. capricious, grant (D.C.Cir.2011), petition v. 645 F.3d 427 review with respect and them argument impermissi EPA’s denial of reconsideration, bly reset NESHAP floors rather than re remand for further action existing vise floors is consistent with based on a flawed this decision. We reading Though stay of the CAA. decline to must NESHAP rule pending review and revise standards “no often reconsideration. The less CAA does not man- every years,” than eight stay, date a 7607(d)(7)(B), U.S.C. U.S.C. 7412(d)(6), nothing prohibits EPA unlikely from because it is significant reassessing its standards changes more often. will be made to the standards reconsideration, upon we see little chance PCA also argues of PCA suffering irreparable harm. adoption of a continuously-monitored stan (“CEMS”) dard rather than a sampling will, however, We stay enter a standard for particulate matter emissions the NESHAP applicable “logical was not a outgrowth” of pro clinker storage piles. EPA has conceded rule, posed Small Lead Phase- that it give “did not sufficient notice” of Refiner Down Task Force v. those standards and granted has PCA’s (D.C.Cir.1983), but this is not request reconsideration, true. but it denied EPA sought comment on a require CEMS request stay. PCA’s for a 76 Fed.Reg. ment in proposal, 28,318, 28,325-26 2011). its first and PCA even (May Because 21,136,21,- commented on it. 74 Fed.Reg. EPA will now be receiving comments for (May Moreover, any time, individ the first likely standards could hardship ual resulting from the change substantially. Thus, CEMS industry requirement mitigated by is the fact that a should not have to expensive build new may kiln employ monitoring” “alternative containment structures until the standard if it demonstrates the finally “technical or eco- determined. flexibility why cate more than this is nec-
III essary appropriate.”) (emphasis or even *13 challenge to the Turning to PCA’s added). reject thus as unfounded We by addressing rulemaking, begin NSPS that EPA to con- PCA’s contention failed pollu regulated for all that its contention the of its standards on older sider effects ... the tants, to “consider EPA failed kilns. may that affect relevant variables range of Open plants.” true, notes, in PCA emissions different It that EPA as PCA Lime Ass’n v. (quoting Br. Nail ing expected primarily 33 the NSPS limits would (D.C.Cir.1980)). F.2d 433 kilns apply preheater/precalciner to EPA adequately EPA failed to argues rulemaking accordingly—for PCA focused impact example, by using primarily of its NSPS standards data derived consider the that, modified, if design preheater/precalciner kilns of from kilns. See 73 on older (June 2008) Instead, 34,072, 34,075 subject Fed.Reg. to NSPS. could become (“EPA proposed EPA fo believes that the limits illegitimately argues PCA new, modified, today appropriate are preheater/pre on kilns with solely cused preheat- and reconstructed since the kilns technology. calciner in er/precalciner design will be utilized on its own terms argument This fails instances.”). each of these But this was an contention, contrary to PCA’s because eminently reasonable on decision based the regulated how all kilns EPA demonstrated facts EPA had before it. As EPA ex could NSPS standards. based meet industry plained, statistics show virtu limits “on control its PM and sulfur dioxide ally being replaced by all older kilns are applied any can technologies that be preheater/precalciner newer units. Id. In control type kiln and achieve the same deed, during past years only two expected levels that would be with a new modified, long long dry wet or kilns were 54,970, kiln Fed.Reg. at similar costs.” 75 replaced, rather than and both were modi added). 2010) 54,995-96 (emphasis (Sept. preheater/precalciner fied to include tech attempts dispute PCA nowhere even then, core, nology. argu Id. At its PCA’s oxide, EPA did point. this As nitrous that EPA by ment is abused its discretion more difficult for note that it would be failing adequately to consider the effects of final emissions lim- older kilns to meet its entirely conjectural its standards on an its, “investigated and indeed whether [it] species newly long of kiln: a modified wet [nitrogen oxide] should set a different long dry or kiln without preheater/precal limit for modified kilns.” Id. at emissions technology. given ciner But the universal 54,996. studies, But based on detailed in portland industry movement cement ultimately that older determined adoption preheater/precalciner towards nitrogen increasing kilns could avoid their technology, we have no basis for conclud thus, in com- oxide emissions—and remain ing primari that EPA’s decision to focus standards—by pliance utilizing with NSPS ly—but exclusively—on preheater/pre variety of different controls. Id. See arbitrary capricious. calciner kilns was ASARCO, Inc. v. F.2d 328- 7607(d)(9)(A). (D.C.Cir.1978) (“[T]he operator of an existing facility any can make alterations We next turn to PCA’s various final PM facility becoming challenges he wishes without to the limits. PCA subject promulgating to the the level first that in PM long argues NSPS as as facility improperly “incorporated emissions the altered does NSPS EPA from entirely PM limit from not increase.... The record does not indi- distinct new source rulemaking in of under- does it somehow lieu invalidate EPA’s earlier the NESHAP analysis considering analysis cost of fabric filter taking technology. Open- reject PCA required [NSPS].” factors We therefore PCA’s contention that particular, contends ing Br. 20. PCA promul- failed to consider cost when pound/ton adopted the 0.01 gating its NSPS standard. Nor do we find PM standard as the NSPS PM merit PCA’s novel argument unsup-— “consideration of the cost standard without ported by any authority EPA was —that impacts that re- [NSPS] or other non-air required “reanalyze promul- costs *14 Br. 22. quires.” Opening PCA limit,” gating the PM im- and thus final properly analysis relied on the cost had Although This assertion is incorrect. previously conducted in the proposed rule. rulemaking both the NSPS and NESHAP Br. Reply logic PCA 5. Neither law nor in a PM emissions limit of 0.01 resulted requires EPA ton, spend its time and re- EPA at that limit pounds per arrived conducting perfunctory sources a using two different mechanisms. Under cost NESHAP, analysis doing duplicate EPA set the PM emissions lim when so would that pounds per agency it at 0.01 ton because was information the already has before by best-performing the level achieved it. 54,970, 54,- existing Fed.Reg. source. 75 Similarly, we have little trouble 2010). 9, contrast, (Sept. By under 987 rejecting argument PCA’s that EPA failed NSPS, EPA the “best determined to consider the other countervailing factors reduction,” 42 system of emission U.S.C. required quality NSPS: “nonair 7411(a)(1), “well-operated § for PM was healthf,] impact environmental and ener- and maintained fabric filters” with mem 7411(a)(1). 42 gy,” U.S.C. EPA’s final 34,072,34,076-77 bags. Fed.Reg. brane surveying order included sections the PM (June 2008). Expressly considering 1) 2) quality impact, standard’s water solid filters, proposed the cost of these EPA’s 3) impact, secondary waste environmental technology NSPS rule determined that the 4) 5) impacts, energy impacts, and cost range
was “well within the of cost-effec 54,970, 55,022-23 impacts. Fed.Reg. accepted ... as reasonable for tiveness (Sept. Although correctly PCA stationary other cement [non kiln] commingled notes that these are sections 34,077. sources.” Id. at And once EPA regu- with discussion of various NESHAP technology determined that fabric filter lations, nothing in the Air Act Clean re- greater reduc could result emissions quires segmented discussion NSPS previously thought, tions than its final rule Instead, factors. requires only statute proposition stated the self-evident health, into account” en- “tak[e] “technology fabric filter would now be vironmental, energy impacts. evaluated as more cost-effective than at 7411(a)(1). The final order’s U.S.C. dis- proposal, greater since PM reductions will cussion of these factors shows that EPA 54,970, Fed.Reg. result from its use.” 75 just fact did that. The that the final order 2010) added). 54,995 (Sept. (emphasis health, environmental, also discussed the sure, To be the final rule also noted that energy impacts regula- of NESHAP kilns would have to install fabric filter tions immaterial. NESHAP, technology comply con Next, we address PCA’s claims that cluding parallel that the rule would NSPS should vacate the PM therefore have no additional cost. Id. But standards “because hardly give ... this statement means that EPA did not notice of its method- standards, limit, “adopted” ology setting the NESHAP nor the NSPS and be- here, AP final logical final PM limit is not rule. As EPA’s cause the proposed.” required compli- rule kilns to demonstrate of the one outgrowth through a PM periodic ance with standard Br. 29. This notice-based Opening PCA here, proposed stack tests. But unlike premise primarily on the argument rests expressly rule invited comment by “incor- NESHAP NSPS standards set require monitoring. on whether to new source NESHAP CEMS porating] 2009) 21,136, 21,157 Fed.Reg. (May Opening the NSPS.” PCA limit for PM as (“[W]e specifically soliciting ar- are comment Having already rejected that Br. 26. difficulty making on the use of a PM CEMS a rejecting little gument, we have added). (emphasis requirement”) claims that EPA “never parallel PCA’s adopt it would provided notice that But although gave inadequate no- NESHAP limit for PM as the new source might adopt require- tice that it a CEMS Opening Br. at 30. limit.” PCA NSPS NSPS, under ment this error was harm- *15 precisely proposed less because But we do see merit one of put NESHAP rule on that PCA notice notice-based claims: PCA’s might require EPA kilns to install CEMS that it would provide failed to notice re systems. During rulemaking, NESHAP monitoring of PM emis quire continuous propriety PCA commented on the of re- proposed from cement kilns. EPA sions quiring response, In CEMS. made requiring compliance kilns to demonstrate changes way to the in which CEMS limits by conducting peri with the PM standard were calculated from raw stack test data only The mention of con odic stack tests. for both NESHAP and NSPS rules. 75 monitoring proposed tinuous in the rule 2010). 54,970, 54,975 Fed.Reg. (Sept. proposed providing an came when Thus, opportunity PCA had an to comment “option” plants compli to demonstrate on potential required for a CEMS by installing ance with the PM standard system “may did so. We invalidate —and (June 34,072, 34,082 Fed.Reg. 73 CEMS. “alleged procedural rule” for [a] errors” rule, however, final its NSPS only if “there is a substantial likelihood EPA required plants to demonstrate com significantly that the rule would have been pliance through with the standard continu if changed such errors had not been monitoring. ous emissions PCA contends 7607(d)(8). § 42 made.” U.S.C. PCA “change that this in limit and fundamental argue does repeating that the com- approach” contravenes this court’s di ments it made in response proposed to the proposed rective rule must “de rulemaking would have resulted range being scribe the of alternatives con in a “substantial likelihood” that NSPS specificity.” sidered with reasonable PCA “significantly standards would have Opening (quoting Br. 29 Horsehead Res. changed,” and fail we to see how this could Browner, Dev. Inc. v. have been the case. Given EPA’s harm- (D.C.Cir.1994) curiam) (per (quotation error, procedural less we thus have no omitted)). agree. We The fact that EPA invalidating basis for the NSPS standard. proposed providing kilns with a CEMS option hardly placed Finally, PCA on notice that that having PCA contends kilns required granted could be to demonstrate final PM reconsideration on the compliance sources, through applied NSPS continuous standard as to modified monitoring. point, emissions by refusing On this abused its discretion compare pro stay find it instructive to implementation EPA’s standard. posed analysis rule to proposed NSPS its NESH- But because the fabric filter cost Indeed, states, final to both nal.” as the rule applied EPA conducted—which sufficient to is not the end of the matter.” Id. at “[t]his and modified kilns—was new standard, 54,996. PM su- the 0.01 support lb/ton entirely unlikely we think it
pra p. alternative, an Environmental As Peti- impose a different standard will attempt to the final tioners recast rule as a on reconsideration. for modified sources final perform- reviewable decision to defer result, as with the NESHAP As a duty pursuant ance of a to Section standards, little chance that PCA we see 7607(b)(2). provides: This section “Where harm. We there- irreparable will suffer a final decision the Administrator defers request stay. for a See deny fore PCA’s performance any nondiscretionary stat- 7607(d)(7)(B). time, utory any person action to a later may challenge the deferral....” U.S.C.
IV added). 7607(b)(2) (emphasis As envi- out, ronmental EPA un- brings petitioners point This us to Environmental challenge rulemaking pur- to EPA’s failure to dertook the instant NSPS Petitioners’ nondiscretionary duty suant to to “at adopt greenhouse gas emissions its and, years, if portland every appro- cement NSPS. We least review part as priate, intervenors that we lack revise standards.” En- agree [NSPS] with PCA See jurisdiction challenge. Reply (quoting to hear this The vironmental Pets’ Br. 7 *16 7411(b)(1)(B)). jurisdiction § to gives Arguing Air Act us re U.S.C. that this Clean actions, 42 EPA a only agency upon view “final” U.S.C. same section confers nondis- 7607(b), cretionary duty [any] “final” in to nothing “complete and there was revision period,” to collect additional infor within the same Environmental EPA’s decision greenhouse emis Petitioners contend that EPA’s decision to proposing mation before greenhouse gas collect additional data on sions standards. emissions constitutes a reviewable “final 1) that: EPA’s final NSPS rule states performance decision” to defer of that yet adequate EPA did “not have informa- duty. at Id. 7-8. gas] suf- [greenhouse tion about emissions 2) First, standard,” ficient a but “based on We are unconvinced. it is unclear to set duty it that there EPA has a appears respect our initial evaluation whether such previously regulat- ... to it has not strategies pollutants are cost-effective control ed, event, provide appropriate any nothing that would an basis but in the NSPS performance rule a final establishing for standard indicates has made performance duty decision to of its [greenhouse gas] for emissions.” 75 Fed. defer 2010). 54,970, 54,996-97 Reg. (Sept. Quite to “review and revise” to standards. contrary: began process EPA explains, working the rule “is to- green- for proposal [greenhouse gas] reviewing wards a for its NSPS standards in- gases, from Portland cement facili- house decided it needed further standards formation, continuing pro- it proposal promulgate ties”—a it will after and is now necessary develop pro- might “to cess of review. This be a different receives data 54,997. if it at We fail case EPA had stated that was defer- posed standards.” Id. ring greenhouse gas tentative and consideration of emis- explicitly
to understand how mandatory standards until its next expressed conditional statements —which sions But no certainty only to EPA’s to con- NSPS review. EPA did such as decision Instead, the informa- studying greenhouse thing. reviewed process tinue the had, considered “fi- tion it decided its data was insuffi- gases possibly be —could cient, rule, “working continued towards a view with respect to NSPS proposal [greenhouse gas] dismiss Environmental peti- Petitioners’ jurisdiction. from Portland cement facilities.” 75 Fed. tion for lack of All of the 54,997 54,970, (Sept. This Reg. place except standards will remain agency court has never considered an deci- applicable the NESHAP standards to rulemaking process to continue the storage piles, stayed sion clinker which are action,” agency any pending be “final nor has reconsideration. We nonetheless jurisdiction urge court held that we have expeditiously to act on remand. 7604(a) review such a decision under Section (“any person may See U.S.C. 7607(b)(2). Thomas, But see Maine v. 874 commence a civil action” in district court (1st Cir.1989) (decided prior compel agency F.2d 883 “to action unreasonably 7607(b)(2)). promulgation delayed”); NRDC v. (D.C.Cir.1990) (“the Clean Air Act’s brief, points At various in their Environ- [provision] citizen suit ... may appro- appear mental Petitioners also to recast priate provide circumstances a check petition challenge their as a to EPA’s “re- , EPA.”). against stalling by indefinite act,” see, e.g., Environmental fus[al] Opening Pets’ noting Br. that since So ordered. rule,
promulgation of its NSPS “has steps BROWN, taken no towards either information Judge, Circuit concurring: regulating plants’ cement collection fully join decision, I per curiam but [greenhouse gas] emissions.” at Id. 20. I separately write to observe that there is if petitioners But environmental are indeed much to be said for argument Petitioners’ act,” challenging a they “refusal to should that EPA permitted should not be to base brought have their case in the district NESHAP standards on bare emissions court. The Air provides Clean Act data, and that should instead isolate *17 any may individual file suit alleging that the effect of emissions control technology perform has failed “to any act or by controlling input quality. Because duty which is not discretionary with kilns are co-located with raw material Administrator,” 7604(a)(2), § 42 U.S.C. quarries and significant because there is and that “[t]he district courts shall have in variability pollutant content of those jurisdiction” suits, 7604(a) § over these id. materials, raw may a kiln have low emis- added). (emphasis simply sions because it happens to be Because we lack statutory jurisdiction blessed with good inputs, not because it is claims, over petitioners’ environmental we using a superior control technology. But have no need to consider PCA’s alternative when the CAA directs EPA to set floors argument that petitioners environmental based on “the emission control that is lack III standing. Article See Nat’l Ass’n practice in achieved the best controlled Norton, Home Builders v. 415 F.3d 7412(d)(3) source,” § similar (D.C.Cir.2005). 12 n. 4 added), (emphases it would seem to be specifically directing EPA’s attention to
V the active kiln steps a has taken to “con- reasons, For emissions, aforementioned trol” its not simply to the level grant petition PCA’s for review with re- text, emissions itself. In addition to the spect to EPA’s denial of reconsideration of the structure .of the statute suggests also the NESHAP rule and remand the rule for that quality inputs should not be action, deny further petition PCA’s for re- permitted to affect the calculation of
195 plants specific ular because of conditions of materials”—in the “substitution floors: words, EPA can plants (e.g., adoption to which to those of the degree other inputs order to necessary very kilns to switch require technology requires cost- listed as a a standard —is comply with ly retrofitting, required or the technolo- second, in the be- to be considered cannot, factor inputs local whose gy given use determination, not in the yond-the-floor essential, “floor”)? achieve the For floor-setting determination. antecedent plants, it would seem that what these 7412(d)(2)(A). §Id. 112(d)(3) has been “achieved” under not be “achievable” under would notes, how- decision per As the curiam 112(d)(2) man- light of the latter’s already re- ever, has been argument this EPA to consider cost. date to EPA, v. by the Sierra Club jected Court (D.C.Cir.2007), and that 479 F.3d J., (Williams, concurring) at 479 F.3d Snow, controls, v. Maxwell decision added). quite right He that (emphasis was (D.C.Cir.2005). simply I am F.3d ignoring input quality determining when at our conclu- to how we arrived puzzled as statutory the floors subverts the scheme First, of the the text and structure sion. a floor by allowing to establish compel opposite to me to statute seem simply cannot meet. The some kilns CAA Second, our Club relied on Sierra result. “beyond- at the permits to do this v. in National Lime Ass’n holding stage long the-floor” as as considers the (D.C.Cir.2000), that the costs, very but the existence of relevant “that achieve- require [the] does not CAA secondary phase indicates in- specific of a product ... be the ment permitted to set a standard should not be I not read National Lime tent.” But do floor-setting stage at the which is unac- need not that the achievement to have held input quality. hievable due Instead, any intent. product be the National Lime reveals context decision, Congress’s, But it our was one referring to emissions of Court was ignore input to demand that variabili incidentally only “controlled sort that are It ty when it sets emissions floors. was sort of placed upon” another by controls only permit to not but our decision The incidental control one emission. Id. ignore EPA to the costs of achiev require controlling the result of anoth- emission as them, in enact other ing those floors—to certainly counts as an “achieve- er still words, even if some kilns would never be *18 control. But the Court ment” of emission of our deci able to meet them. Because imply emis- did not state —or even —that sion, “maximum achievable control these by inputs determined alone sions levels technology” floors have little to do with con- an “achievement” of emission count as controls, achievability, technology, even the statute. meaning trol within the of during though, as Senator Domenici stated law, in concurred Si- “initial Judge Senior Williams consideration of this the the in rela- paradox “note a the tight erra Club to of controls deter [to be] level key of provisions two tionship strictly between the of the availabili mined on basis S17,- Air Act”: 112 of the Clean ty technology.” Cong. Rec. of 1990) (statement 26, (daily ed. Oct. 120-24 meeting if the “floors” is extreme- What Domenici).1 of Sen. Pete costly partic- ly prohibitively or even Act, fact, mary http://www.epa.gov/ the Clean Air also refers to the 1. EPA's own website of (last lawsregs/laws/caa.html visited Nov. “technology-based,” rather than standards as Agency, Prot. Sum- emissions-based. Envtl. and persistent floor mechanism atten- interpretation, to our In contrast NESH- that enacted the current elsewhere in statute tion' —reflected Congress concerned quite in 1990 was program legislative history AP im- and the—to regulation those the costs only about portance analysis of cost-benefit bol- —-and economic presumably included the costs reading ster clear of the Our this text. putting going concerns out of impact Sierra holding in Club was a self-inflicted text and straightforward The business. wound, and the result of a series inter- floor-setting provisions structure of I pretive leaps simply that cannot follow. Moreover, Congress in- convey as much. Congress’s I we have regret ignored requirement the 1990 specific cluded wishes and made life more difficult—for a “com- prepare Amendments industry employees, and its “costs, benefits analysis” of the prehensive for ourselves. with compli- other effects associated with, among things, other ance” 7612(a). Speak-
standards. and of cost-
ing support provision of this analysis generally, more Senator
benefit the Amendments as
Moynihan described legislation first in his-
“the environmental require extended and intensive cost
tory said, now, analysis” benefit “Until CORPORATION, DEMING HOSPITAL have too often feared facts. This fear has doing business as Mimbres Memorial pro- [us] not served well. Environmental Hospital, Petitioner prohibit from grams taking the EPA v. have, compliance the costs of into account not, often than resulted in deadlock.” more NATIONAL LABOR RELATIONS S16,895-97 (daily Cong. Rec. ed. Oct. BOARD, Respondent. 1990) (statement Patrick of Sen. Daniel 11-1064, Nos. 11-1095. strange It if Moynihan). would be indeed Congress so importance attuned to the Appeals, United States Court of analysis EPA to set cost-benefit intended District of Columbia Circuit. regardless emissions floors cost. Argued Oct. 2011. sought agency’s Congress constrain discretion; we free. decided to set it Decided Dec. 2011.
The truth is that unavoidable this is no
paradox: terms statute’s use of like
“achieved” and at the “controlled” floorr
setting stage urges EPA to on what focus *19 actually
sources have done ameliorate pollution caused set particular their If inputs. analysis the outcome of that strong enough satisfac- for EPA’s
tion, the “beyond-the-floor” pro- statute’s provide
cedures it with an outlet to set standards, long
stricter so it considers as
the costs of that course of action. Con-
gress’s very provision beyond-the- of this