SIERRA CLUB, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL O. LEAVITT, ADMINISTRATOR, US ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS STATE OF MARYLAND, ET AL., INTERVENORS
No. 03-1084
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
April 16, 2004
September Term, 2003; Consolidated with 03-1103, 03-1115, 03-1152
BEFORE: Sentelle, Henderson and Garland, Circuit Judges
Upon consideration of petitioner Sierra Club‘s petition for rehearing, it is
ORDERED that the Opinion filed herein on February 3, 2004, is hereby amended as follows:
On Page 18, footnote 9: Delete the last two sentences (beginning with, “But Sierra Club‘s reading ...“) and the final citation and insert in lieu thereof: “But no statute or regulation requires such a demonstration.”
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Deputy Clerk
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2003 Decided February 3, 2004
No. 03-1084
SIERRA CLUB, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL O. LEAVITT, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS STATE OF MARYLAND, ET AL., INTERVENORS
Consolidated with 03-1103, 03-1115, 03-1152
On Petitions for Review of Final Actions of the Environmental Protection Agency
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Cynthia J. Morris, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Howard J. Hoffman and Sara Schneeberg, Attorneys.
Kathy M. Kinsey, Assistant Attorney General, State of Maryland, argued the cause for intervenors State of Maryland, et al. With her on the brief were J. Joseph Curran, Jr., Attorney General, Robert J. Spagnoletti, Corporation Counsel, District of Columbia, Edward E. Schwab, Acting Deputy Corporation Counsel, Donna M. Murasky, Senior Litigation Counsel, Jerry Kilgore, Attorney General, Commonwealth of Virginia, Roger L. Chaffe, Senior Assistant Attorney General, and Carl Josephson, Assistant Attorney General.
Before: SENTELLE, HENDERSON, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: In these consolidated cases, Sierra Club challenges two final actions of the Environmental Protection Agency (EPA) regarding ozone control plans for the Washington, D.C. area. Those plans were designed to bring the area into compliance with ozone standards prescribed by the Clean Air Act and EPA regulations. Sierra Club contends that EPA violated the Act by giving conditional approval to the plans notwithstanding that they lacked required statutory elements. Sierra Club also challenges the substance of two elements that were included in the plans, as well as EPA‘s extension of the deadlines by which revised plans must be submitted for final approval.
We agree with Sierra Club‘s principal contention that EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today. We therefore vacate the conditional approval and remand the matter to EPA for further action consistent with this opinion. In other respects we deny the petitions for review.
The Clean Air Act (CAA),
The Act also prescribes the process by which areas must arrive at and maintain compliance with the NAAQS. Each state must adopt and submit for approval to EPA a state implementation plan (SIP) that provides for “implementation, maintenance, and enforcement” of applicable NAAQS in each air quality region (or portion thereof) within the state.
Particularly relevant for this case, SIPs from states in nonattainment areas must also: (1) provide for “the implementation of all reasonably available control measures [RACM] as expeditiously as practicable,”
The Washington, D.C. Metropolitan Area (“D.C. area“) is made up of the District of Columbia and several Maryland and Virginia counties. Pursuant to the Clean Air Act, EPA classified the D.C. area as a “serious” nonattainment area for ozone in 1991. Designation of Areas for Air Quality Planning Purposes, Final Rule, 56 Fed. Reg. 56,694, 56,738, 56,772, 56,841 (Nov. 6, 1991). The statutory deadline for ozone attainment by serious areas was November 15, 1999, and revised SIPs including the attainment demonstration and ROP plans were due by November 15, 1994.
Maryland, Virginia, and the District of Columbia (“the States“) did not submit their attainment demonstration and other plan provisions for the D.C. area until 1997-1998; they
Sierra Club petitioned this court for review, contending (inter alia) that EPA could not approve the SIPs without the missing statutory elements, and that it had no authority to extend the statutory attainment deadline without reclassifying the area as severe. We agreed, vacated EPA‘s approval of the SIPs, and remanded the matter to the agency. Sierra Club v. EPA, 294 F.3d 155, 160-65 (D.C. Cir. 2002) [Sierra Club I]. On November 13, 2002, Sierra Club filed a new action in the U.S. District Court for the District of Columbia, seeking an injunction to compel EPA to reclassify the D.C. area as severe and to take final action either approving or disapproving the previously submitted SIPs. The district court granted those requests and ordered EPA: (1) by January 27, 2003, to determine whether the D.C. area had attained the NAAQS for ozone by the applicable attainment date of November 15, 1999, and, if not, to reclassify the area; and (2) by April 17, 2003, to approve or disapprove the SIP submittals that had been remanded in Sierra Club I. Sierra Club v. Whitman, No. 02-2235 (D.D.C. Dec. 18, 2002).
EPA responded to the district court‘s order with the two actions that are at issue in this case. On January 24, 2003, in a decision known as the “bump-up” action, EPA determined that the D.C. area had not attained the NAAQS for serious ozone nonattainment areas by the statutory deadline and
In a second decision issued on April 17, 2003, the so-called “conditional approval” action, EPA granted conditional approval to the existing SIPs, notwithstanding the absence of the three elements that Sierra Club I had identified as precluding final approval. Approval and Promulgation of Air Quality Implementation Plans, Final Rule, 68 Fed. Reg. 19,106, 19,107 (Apr. 17, 2003) [hereinafter Conditional Approval]. The agency based its conditional approval on letters submitted by the States that committed to cure those deficiencies and to comply with the additional requirements of the severe area classification by April 17, 2004. Id. at 19,131-33. The agency also made determinations regarding, inter alia, two elements that were contained in the existing SIPs: it concluded that the attainment demonstration showed that implementation of already adopted control measures would result in attainment of the ozone NAAQS by the statutory deadline, and it conditionally approved the States’ ROP plans for 1996-1999.
Sierra Club now petitions for review of both actions pursuant to the jurisdictional grant of
II
We begin with Sierra Club‘s primary challenge: its contention that EPA violated the Clean Air Act by conditionally approving the concededly deficient D.C. area SIPs on the basis of the States’ commitment letters. EPA‘s response is that conditional approval was authorized by
(4) Conditional approval
The administrator may approve a plan revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision. Any such conditional approval shall be treated as a disapproval if the State fails to comply with such commitment.
EPA acknowledges that the SIPs did not contain a number of the elements required for full approval. Indeed, it concedes that the SIPs were missing the same three features that led this court to vacate EPA‘s full approval in Sierra Club I: (1) RACM analyses and the implementation of reasonable available control measures necessitated by such anal-
Notwithstanding these deficiencies, EPA argues that the SIPs qualified for conditional approval — rather than disapproval — because they contained other required elements (including the attainment demonstration and control strategy), and because the States submitted letters committing to remedy the deficiencies within one year, by April 17, 2004. But while the States did file commitment letters, those letters identified no “specific enforceable measures” of any kind. Maryland‘s commitment regarding contingency measures and RACM is typical of the States’ submissions, and reads in full:
We also commit to submit to EPA, not later than April 17, 2004, adopted contingency measures to be implemented if the D.C. area does not attain the one-hour ozone NAAQS by November 15, 2005. Additionally, by April 17, 2004, we commit to submitting to EPA an appropriate RACM analysis for the D.C. Area, along with any revisions to the attainment demonstration SIP necessitated by such analysis, including adopted measures to demonstrate timely attainment and to meet RACM requirements, should there be any.
EPA does not dispute that the States’ letters failed to identify specific measures that the States committed to adopt. Indeed, EPA argues that the States do not yet know what those measures will be because they have not yet completed the necessary analyses. As the agency explains: “It is true that the States have not yet identified the specific measures that could ultimately be adopted, however, it would be impossible for them to do so in advance of conducting the requisite RACM and modeling analyses.” Conditional Approval, 68 Fed. Reg. at 19,109. EPA‘s contention is that all that the States need do to qualify for conditional approval is to commit to adopt specific enforceable measures by a date certain; they do not need to tell EPA what those measures are — or even know what they are. Oral Arg. Tr. at 35. The agency frames the issue as follows:
EPA interprets the provision to require that the States commit to adopt specific enforceable measures by a date certain, but does not require that the individual measures be identified in the commitment. Petitioner, on the other hand, interprets the provision to require the States to identify, in their commitments, the individual enforceable measures that will be adopted by a date certain.
Resp‘ts’ Br. at 33.
EPA‘s interpretation cannot be squared with the unambiguous statutory language. The statute requires that the States commit to adopt specific enforceable measures. Here, the agency has accepted as sufficient a commitment to adopt what it concedes are unspecified measures — with the specifics to be named later. Moreover, the statute requires a commitment to adopt specific enforceable measures by a date certain. Here, not only are the measures unspecified, but the States have committed to adopt them only “if such measures are determined to be needed based on further analysis.” Conditional Approval, 68 Fed. Reg. at 19,109 (emphasis add-
This is not the first time that EPA has defended a construction of
Although NRDC is factually distinguishable on the ground suggested by EPA, it is not legally distinguishable. It is true that the SIPs in NRDC were bereft of substantive provisions. But we did not suggest that the States’ failure to submit the specific elements of concern to the petitioner there — vehicle inspection and maintenance programs, and emission controls at stationary emission sources — would have been cured had substantive provisions addressing different requirements been included. Nor is there anything in the language of
At bottom, NRDC rejected EPA‘s construction of
III
In the previous Part, we considered Sierra Club‘s attack on EPA‘s conditional approval action insofar as it was based on mere promises to adopt SIP elements in the future. In this Part, we consider petitioner‘s attacks on the substance of two elements that the States did submit as part of their SIPs.
A
The Clean Air Act requires that each SIP contain an attainment demonstration showing that the area will achieve the ozone NAAQS by the statutory deadline.
Under
A demonstration that the plan, as revised, will provide for attainment of the ozone national ambient air quality standard by the applicable attainment date. This attainment demonstration must be based on photochemical grid modeling or any other analytical method determined by the Administrator, in the Administrator‘s discretion, to be at least as effective.
A photochemical grid model is a mathematical model that predicts ozone levels on the attainment date based on monitoring data, meteorology, planned emission reductions, the area‘s projected growth, and other factors. BCCA Appeal Group v. EPA, 348 F.3d 93, 106 n.12 (5th Cir. 2003).4 Both parties agree that the States’ demonstration began with a photochemical grid model known as the Urban Airshed Model (UAM). The model was used to predict ozone levels in 2005 by assuming implementation of the control strategy adopted in the SIPs and extrapolating from data collected on three high-ozone summer days in 1991: July 16, 19, and 20. Both parties also agree that use of the model alone showed peak ozone concentrations exceeding the NAAQS on those three days in 2005; the model indicated that on those days the area‘s SIPs would result in daily one-hour maximum ozone levels of 139, 150, and 178 parts per billion (ppb) — all in excess of the 120 ppb NAAQS for ozone.5 EPA, First
EPA did not, however, conclude its analysis with these exceedances. Rather, it adjusted the model‘s extrapolations in light of the agency‘s concerns about the model‘s reliability and uncertainty. In particular, the agency noted that, when it applied the model to the three days in the base year (1991) and compared the model‘s results to the actual monitored results for those days, the model over-predicted known ozone concentrations by an average of 19%. Id. at 10-11 (J.A. at 813-14). It therefore adjusted the model‘s calculations, using a variety of supplemental statistical techniques, to correct “average modeled peak over-prediction” and “day-specific over-prediction.” Id. Those adjustments resulted in demonstrated attainment for two out of the three modeled days. Id. Although the adjustments still did not indicate attainment for July 20, 2005, EPA determined that the base-year data used to model that day was too anomalous to demonstrate nonattainment. July 20, 1991, the agency found, had been the 13th most severe ozone-producing day in 44 years. Id. at 12-13 (J.A. at 815-16). EPA reasoned that “[t]his type of day is not likely to occur often enough to be a major causative factor for nonattainment because the [NAAQS] allows up to three monitored exceedances in any three year period.” Conditional Approval, 68 Fed. Reg. at 19,114. It therefore concluded “that attainment of the 1-hour ozone standard has been successfully demonstrated for the Washington area by no later than 2005.” Amendment to Technical Support Document at 13 (J.A. at 816).
Sierra Club insists that once the model showed exceedances on three days, that should have been the end of the matter.
We disagree. Under Chevron, “when the statute ‘is silent or ambiguous’ we must defer to a reasonable construction by the agency charged with its implementation.” Barnhart v. Thomas, 124 S. Ct. 376, 382 (2003) (quoting Chevron, 467 U.S. at 843).6 There is no question that the phrase “based on” is ambiguous. As EPA points out, it does not necessarily require that attainment demonstrations rest solely on grid modeling. See BCCA, 348 F.3d at 111 (holding that “the statute is ambiguous” and “does not require that an attainment demonstration be based solely ... on photochemical grid modeling“); cf. McDaniel v. Chevron Corp., 203 F.3d 1099, 1111 (9th Cir. 2000) (noting that, in the context of various statutes, courts have held that the phrase “‘based on’ is synonymous with ‘arising from’ and ordinarily refers to a ‘starting point’ or a ‘foundation‘“); United States ex rel. Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148, 1158 (2d Cir. 1993) (holding that “based upon” in the False Claims Act does not mean based “solely” upon).7 On the other hand, as the agency also properly concedes, the phrase would not permit an attainment demonstration that wholly abandoned the results of a model by using a supplemental analysis that effectively supplanted the model‘s calculations. Oral Arg. Tr. at 26-27.
Because the statute is ambiguous, the question is whether the results obtained by adjusting the model can still reasonably be described as “based on” that model. We agree with
Sierra Club further contends that, even if supplemental adjustments of the model are not statutorily barred, the agency was nonetheless arbitrary and capricious in applying them in this case. See
The relevant data here are the agency‘s findings that the model “systematically over-predict[ed] ozone concentration” in comparison to actual observed results, and that it over-weighted conditions on a single day that were “not likely to occur often enough to be a major causative factor for nonattainment.” Conditional Approval, 68 Fed. Reg. at 19,114-15. Sierra Club offers no evidence to dispute either finding. The rational connection between these data and the agency‘s
Finally, we note that our conclusion, that EPA was reasonable in interpreting
B
Sierra Club also takes issue with another component of the States’ SIPs that EPA conditionally approved in its order of April 17, 2003: the rate-of-progress (ROP) plans for 1996-1999.10 Petitioner contends that the agency‘s approval of those plans was arbitrary and capricious because the plans relied on an outdated emissions model.
As we have discussed, the Clean Air Act requires that SIPs for serious and severe nonattainment areas include ROP plans that demonstrate an average reduction of baseline emissions of 3% per year for each consecutive three-year period from 1996 to the attainment deadline.
EPA explained that it accepted the States’ use of MOBILE5 because it was the most recent model available at the time the plans were prepared. Conditional Approval, 68 Fed. Reg. at 19,121. The States originally submitted their ROP plans in 1999, and then resubmitted them as part of the D.C. area SIPs in February 2002. EPA did not make MOBILE6 available until January 29, 2002 — just one month before the States submitted their SIPs and long after the modeling had been completed and the ROP plans prepared. See Official Release of the MOBILE6 Motor Vehicle Emissions Factor Model, Notice of Availability, 67 Fed. Reg. 4254 (Jan. 29, 2002); see also Conditional Approval, 68 Fed. Reg. at 19,120-21.
Sierra Club argues that the States should nonetheless have revised the D.C. area ROP plans to incorporate the advances of MOBILE6, for two reasons. First, MOBILE6 was available, albeit for only one month, before the States submitted their plans. Second, EPA did not approve the plans until April 17, 2003, over a year after MOBILE6‘s release.
EPA responds that, although it requires that states use the latest model available at the time a plan is developed, see
IV
Finally, we consider Sierra Club‘s attack on EPA‘s bump-up action of January 24, 2003, which reclassified the D.C. area from “serious” to “severe” nonattainment. Reclassification, 68 Fed. Reg. at 3410. Needless to say, Sierra Club does not contest the decision to reclassify D.C. as a severe nonattainment area: to the contrary, petitioner‘s suit in Sierra Club I sought just that result. What Sierra Club does dispute is EPA‘s concomitant decision to extend the States’ final deadline for submitting revised SIPs complying with the Act‘s requirements for severe areas, including post-1999 ROP plans, to March 1, 2004. Id.
By statute, the reclassification of the D.C. area extended the attainment deadline from November 1999 (the deadline for serious nonattainment areas) to November 2005 (the deadline for severe areas), and required the States to revise their SIPs to comply with the additional requirements applicable to the new classification.
Section 182(i) of the CAA gives EPA the authority to adjust applicable statutory deadlines, other than attainment dates, when it reclassifies an attainment area:
Each State containing an ozone nonattainment area reclassified under section 7511(b)(2) of this title shall meet
the requirements of subsections (b) through (d) of this section as may be applicable to the area as reclassified, according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust any applicable deadline (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.
[I]n light of the fact that the original submission dates for severe areas have elapsed prior to the time that we issued the proposed reclassfication for the Washington area, it is a reasonable exercise of EPA‘s discretion to adjust the applicable submission deadlines in order to ensure consistency among the new requirements.... Because the States must now meet newly imposed requirements such as post-1999 ROP and additional severe area control requirements, EPA must set prospective dates, and has authority under section 182(i) to make these dates consistent.
Reclassification, 68 Fed. Reg. at 3413. Moreover, extending the SIP and ROP deadlines to one year from the date of reclassification (i.e., to March 1, 2004) would “assure consistency among” all of the “required submissions,” including the severe area and post-1999 ROP requirements.
Sierra Club contends that EPA should have retained the original submission deadlines, and that its decision not to do so was an unlawful application of
This circuit, too, has previously rejected Sierra Club‘s suggestion. In Sierra Club v. Browner, petitioner had similarly urged the district court to require a reclassified area (St. Louis) to comply with the new classification‘s statutory deadline for SIP submittals, even though that deadline had passed long before the reclassification, and thus to declare the area in default. Sierra Club v. Browner, 130 F. Supp. 2d 78, 87 (D.D.C. 2001). The district court refused that request, id. at 92-94, and we affirmed, Sierra Club v. Whitman, 285 F.3d 63, 68 (D.C. Cir. 2002). “The relevant provisions of the Clean Air Act,” we said, “contain no language suggesting that Congress intended to give EPA the unusual ability to implement rules retroactively.” Id. Sierra Club‘s argument in this case is indistinguishable, and we therefore reject it.11
V
For the foregoing reasons, we vacate and remand EPA‘s conditional approval action insofar as it granted conditional approval based on the States’ commitment letters. In all other respects, we deny the petition for review of that action, as well as the petition to review the bump-up action.