Sierra Club v. United States Environmental Protection AgencySierra Club v. United States Environmental Protection Agency
Case Information
*1 Before DeMOSS, STEWART, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Sierra Club, Inc., Clean Air and Water, Inc., and Community
In-Powerment Association (collectively the "Petitioners"), are
appealing the Environmental Protection Agency's (EPA) final action
at
66 Fed. Reg. 26,914
(May 15, 2001) (codified at 40 C.F.R. pt.
52), which they contend contravenes the Clean Air Act (CAA),
*
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Regulatory Background.
The CAA establishes a comprehensive program for improving air
quality throughout the nation. Under the CAA, the EPA is charged
with identifying air pollutants that endanger the public health and
welfare.
Under the CAA, states must adopt SIPs specifying emission
limitations applicable to pollution sources in order to maintain
and enforce each NAAQS.
Under
In addition, all nonattainment area plans must provide for
implementation of "all reasonably available control measures [RACM]
as expeditiously as practicable."
Id.
§ 7502(c)(1). The EPA must
review each submitted plan.
B. The Extension Policy at Issue in this Case.
On March 25, 1999, the EPA issued a notice of interpretation of the CAA entitled "Extension of Attainment Dates for Downwind Transport Areas." 64 Fed. Reg. 14,441 (Mar. 25, 1999). In this extension policy, the EPA interpreted the CAA as allowing for the extension of attainment dates for ozone nonattainment areas classified as either "moderate" or "serious" and that are downwind *5 of areas that transport ozone and interfere with their ability to attain required ozone levels. Id. at 14,441-42. According to the EPA, it was seeking to "harmonize the attainment demonstration and attainment date requirements for downwind areas affected by transport both with the graduated attainment date scheme and the schedule for achieving reductions in emissions from upwind areаs." at 14,443.
In the extension policy, the EPA explained that an area's attainment date would be considered for extension if it: (1) has been identified as a downwind area "affected by transport from either an upwind area in the same State with a later attainment date or an upwind area in another State that significantly contributes to downwind nonattainment"; (2) has submitted an approvable attainment demonstration with any "necessary, adopted local measures," which indicates it will attain the one-hour NAAQS "no later than the date that the reductions are expectеd from upwind areas under the final [nitrogen oxides] SIP Call and/or the statutory attainment date for upwind nonattainment areas"; (3) has adopted "all applicable local measures required under the area's current classification and any additional measures necessary to demonstrate attainment," given that the reductions occurred as required in upwind areas; and (4) will "implement all adopted measures as expeditiously as practicable, but no later than the date by which the upwind reductions needed for attainment will be *6 achieved." Id.
If an area satisfies the above guidelines, it would not be reclassified or "bumped-up" if it failed to attain by its original attainment date under section 7511(b)(2). The reasoning for this is that the EPA concluded that Congress did not intend for downwind areas to be "penalized by being forced to compensate for transported pollution by adopting measures that are more costly and onerous and/or which will become superfluous once upwind areas reduce their contribution to the pollution problem." at 14,444. Nevertheless, downwind areas are still responsible for implementing local controls sufficient to bring about attainment, except for the transported pollution. Id.
C. EPA's Application of the Extension Policy to the Beaumont
Area.
The Beaumont area is classified as a moderate ozone
nonattainment area. See
Petitioners now appeal the EPA's application of the extension
policy to the Beaumont area. Petitioners also appeal the EPA's
determination that
II. STANDARD OF REVIEW
This Court's role in reviewing the adequacy of the EPA's final
action is governed by the Administrative Procedure Act,
III. DISCUSSION
A. Whether the EPA acted consistently with the CAA in granting an
extension of the statutory date for meeting federal standards for ozone air pollution in the Beaumont area and in approving a SIP for the area based on that extension.
The EPA argues that it did not abuse its authority by implementing its extension policy. The EPA asserts that its interpretation of the CAA is the best way to reconcile the Act's provisions. Acсording to the EPA, when considering all of the CAA's pertinent language, Congress clearly did not intend the unduly restrictive and punitive reading that Petitioners urge on this Court. The EPA argues that its interpretation of the CAA was necessary to fill a statutory gap to avoid unfairly burdening downwind areas by forcing them to adopt more stringent local controls for the purpose of compensating for another area's transported pollution.
In support of its argument, the EPA notes that Congress has
provided extensions to transport-affected nonattainment areas such
as in cases of international border areas under section 7509a,
which spares ozone nonattainment areas that demonstrate they suffer
from pollution from “outside of the United States” from being
bumped-up to a higher ozone classification. Under
The EPA concedes that when the 1990 amendments to the CAA were passed, Congress did not expressly specify similar relief for other areas, including for downwind cities that are unable to achieve attainment as a result of upwind cities within the same State. The EPA, however, maintains that Congress did not fully address all issues of ozone transport at the time the CAA was amended in 1990 because there was a lack of understanding concerning the issue. According to the EPA, it was not until the mid-1990s that a sufficient understanding of the complex ozone transport problem began to be achieved as a result of the Ozоne Transport Assessment Group (OTAG), an organization with the mission to assess and recommend strategies to address ozone transport. Thus, the EPA insists that a reasonable understanding of ozone transport was not achieved until well after the Beaumont area's 1996 attainment *10 deadline. Ultimately, the EPA asserts that it was reasonable for it to conclude that the Houston/Galveston area's impact on the Beaumont area's ability to attain the one-hour ozone standard indicated that the CAA's transport and attainment provisions did not function as Congress envisioned.
Petitioners, however, contend the EPA abused its authority by
defeating the express statutory reclassification requirements of
the CAA and extending the ozone attainment deadlines for the
Beaumont area based on pollution transport, and by approving the
SIP as adequate based on the extension. According to Petitioners,
because the Beaumont area failed to achieve attainment of required
ozone levels, it should have been reclassified from “moderate”
(with an attainment date of November 15, 1996) to either “serious”
(with an attainment date of November 15, 1999) or “sevеre” (with an
attainment date of November 15, 2005). See
This Court is guided by
Chevron, U.S.A., Inc. v. NRDC ,
467
U.S. 837, 842-44 (1984), in evaluating the EPA's interpretation of
the CAA. The first step under Chevron is to inquire whether
Congress “has directly spoken to the precise question at issue.”
*11
Id.
at 842-43. If Congress has spoken to the issue, this Court
“must give effect to the unambiguously expressed intent of
Congress” and "that is the end of the matter."
Id.
However, if
the statute is “silent or ambiguous with respect to the specific
issue,” this Court must move to Chevron' s second step.
Id.
at 843.
Under the second step, this Court must defer to the EPA's
interpretation if it is “based on a permissible construction of the
statute.” Furthermore, as this Court has stated, the EPA's
decision will be reversed “only if it was arbitrary, capricious or
manifestly contrary to the statute.”
Texas Office of Pub. Util.
Counsel,
Petitioners correctly point out that the Supreme Court has
stated: “[I]t is generally presumed that Congress acts
intentionally and purposely when it includes particular language in
one section of a statutе but omits it in another.”
City of Chicago
v. Environmental Defense Fund,
We agree with the Petitioners. The plain terms of the CAA preclude an extension of the sort the EPA granted in the present case. As the Petitioners correctly point out, the CAA specifies when the EPA may extend attainment deadlines to account for upwind emissions that jeopardize an area's ability to achieve attainment without requiring reclassification of the area. For example, the CAA provides:
any State that establishes to the satisfaction of the Administrator that . . . such State would have attained the national ambient air quality standard for ozone by the applicable attainment date, but for emissions emanating from outside of the United States, shall not be subject to the provisions ofsection 7511(a)(2) or (5) of this title or section 7511d of this title.
We note that
NRDC,
uрon which the EPA heavily relies, is
inapposite to the present case. In
NRDC,
the D.C. Circuit
affirmed the EPA’s grant of two deadline extensions. The first
deadline extension concerned the submission of enhanced Inspection
and Maintenance (I/M) SIPs.
NRDC,
The second deadline extension in NRDC concerned the CAA's requirement that States encompassing nonattainment areas submit SIPs or SIP revisions addressing the application of Reasonably Available Control Technology (RACT) to stationary emission sources of nitrogen oxides by November 15, 1992. Id. However, the EPA concluded that photochemical grid modeling was "the only reliable tool to justify an area wide exemption from the [nitrogen oxides] requirements." Id. at 1136. Moreover, the EPA found that the modeling "ha[d] not been utilized previously or, if utilized, ha[d] not adequately considered the effects of [nitrogen oxides] emissions reductions." Id. As a result, the EPA determined that "thе time needed to establish and implement a modeling protocol and to interpret the model results will, in a variety of cases, extend beyond the November 15, 1992 deadline for submission of [nitrogen oxides] rules." Therefore, the EPA created a narrow one-year extension for nitrogen oxides RACT submissions limited to situations in which a State is able to document that "(1) credible photochemical grid modeling is not available or did not consider the effects of [nitrogen oxides] reductions and (2) the state submits progress reports on the modeling showing the program is on schedule while the committal SIP is being reviewed by EPA." Id.
When evaluating the validity of the extension, the D.C. Circuit noted that the CAA expressly gave the EPA 14 to 18 months after the submittal deadline to approve or disapprove these SIPs and to determine whether a State qualified for certain exemptions. Id. at 1136. The court further noted that only a single nitrogen oxides RACT submission was required under the CAA and, therefore, Congress intended all data supporting exemptions to be included with that submittal. Id. According to the court, after receiving a submittal, the EPA should then have had the full 14 to 18 months to review it before making an exemption determinаtion. The court, however, noted that in many instances the EPA would not be able to utilize the full statutory review time to make an exemption determination before the statutory deadline. Therefore, the court concluded that "had Congress foreseen the exemption timing problem, a matter outside the EPA's control, it would have elected to accord the EPA the full statutory review time." Id.
As discussed above, the first extension upheld by the D.C. Circuit in NRDC was necessary to correct a timing problem created by the EPA because it did not meet its own guidance deadline. The second еxtension was upheld because the EPA would not otherwise have the full review time in which to make adequate exemption determinations. Ultimately, this second extension was made necessary by the EPA's own finding that photochemical grid modeling was necessary to justify area wide exemptions. Therefore, in both *16 instances, the extensions upheld by the D.C. Circuit were made necessary by the EPA's own action or inaction, which could not have been foreseen by Congress when it enacted the 1990 revision of the CAA. Neither extension, however, had anything to do with a situation in which a nonattainment area submitted a SIP, had it approved by the EPA, implemented the SIP, and then failed to meet its attainment deadline as did the Beaumont area in this case. B. Whether the EPA reasonably interpreted the CAA as not
requiring any additional RACMs in the Beaumont area’s SIP.
Specifically, Petitioners assert that the EPA improperly limited the menu of RACMs to those that would advance the date of attainment. Petitioners insist the result of the EPA's action relegates the CAA's RACM mandate to mere surplusage because additional control measures that could reduce the frequency and severity of violations need not be considered. Included in the *17 RACMs that Petitioners claim have been excluded from consideration are a number of transport control measures (TCM) listed in section 7408(f) of the CAA. In addition, Petitioners contend that the EPA's determination that potential measures requiring intensive and costly implementation efforts are not RACMs. Petitioners assert that such a determination is based on vague and unintelligible standards and, therefore, is unreasonable.
The EPA acknowledges that additional control measures are
available to the Beaumont area. The EPA, however, contends that
the Beaumont area's attainment demonstration contained all RACMs
required under the CAA. Significantly, the EPA has interpreted
Furthermore, the EPA notes that it revised its guidelines concerning TCMs in its General Preamble for Implementation for the Clean Air Act Amendments of 1990 (Apr. 16, 1992) in which it concluded that "based on experience with implementing TCMs over the years, EPA now believes that local circumstances vary to such a degree from city-to-city that it is inappropriate to presume that all [section 7408(f)] measures are reasonably available in all areas." 57 Fed. Reg. at 13,560 . The EPA then concluded that only those TCMs that are determined to be "reasonably available for *18 implementation in the area in light of local circumstances" should be reviewed by the planning agency.
As noted above, the EPA determined that only those control
measures that contribute to attainment as expeditiously as
practicable are required. This interpretation of the CAA was
applied in a number of final actions before the statute was amended
in 1990. See
53 Fed. Reg. 30,220, 30,222
(Aug. 10, 1988);
53 Fed.
Reg. 30,224, 30,234
(Aug. 10, 1988);
55 Fed. Reg. 40,658, 40,659
(Oct. 4, 1990). When Congress amended the CAA, it moved the RACM
requirement from
Furthermore, there is persuasive authority from the Ninth Circuit to support the EPA's interpretation of the RACM requirement. In Ober v. Whitman , the Ninth Circuit upheld the EPA’s interpretation of the corresponding RACM requirements for particulate matter (PM-10) governed by section 7513a(a). 243 F.3d 1190 (9th Cir. 2001). There, the plaintiffs challenged the exemption from control of a variety of sources of particulate pollution in a Federal Implementation Plan for the Phoenix area.
The Ninth Circuit concluded that the CAA allowed the EPA to
*19
make what it called " de minimis " exemptions and that the agency
acted permissibly in designating some pollution sources as de
minimis .
Id.
at 1198. Notably, the court accepted the EPA's
reasoning in the General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990 that control measures not
aiding in achieving attainment may be excluded from further
consideration because they would not represent RACM for that area.
at 1194-95, 1198. The same reasoning used by the EPA in
Ober
also was used here. The EPA concluded that
Similarly, the EPA need not require an analysis of all
transport control measures (TCM) specifically listed in
Nevertheless, the EPA did conclude that it would be reasonable to use a midpoint level of program effectiveness to analyze potential reductions from TCMs, a level that would be economically feasible and provide effective implementation. See 66 Fed. Reg. at 26,932. Under this program, the EPA’s analysis adequately assessed all necessary TCMs for effectiveness. The result confirmed that the TCMs would not produce emission reductions sufficient to advance attainment in the Beaumont area. Therefore, it appears that the EPA properly concluded that no additional TCMs were required because they would not contribute to expeditious attainment.
Moreover, the EPA properly concluded that potential measures
requiring intensive and costly implementation were not RACMs
because they could not be readily implemented due to excessive
administrative burden or local conditions such as high costs.
Id.
at 26,929. Such determinations based on a cost/benefit analysis
are within the EPA’s discretion unless the statutory scheme
precludes such a determination. See, e.g.,
Michigan v. EPA ,
213
F.3d 663, 678-79 (D.C. Cir. 2000); Cf.
Lastly, we note that the D.C. Circuit's decision in
Sierra
Club v. EPA
also supports our rejection of the Petitioners'
argument that treating as potential RACMs only those measures that
would advance the date at which an area reaches attainment
conflicts with the CAA's text and purpose and lacks any rational
basis. See
The Act, on its face, neither elaborates upon which control measures shall be deemed "reasonably available," nor compels a state to consider whether any measure is "reasonably available" without regard to whether it would expedite attainment in the relevant area. Further, the EPA reasonably concluded that because the Act "use[s] the same terminology in conjunction with the RACM requirement" as it does in requiring timely attainment, сompare42 U.S.C. § 7502(c)(1) (requiring implementation of RACM "as expeditiously as practicable but no later than" the applicable attainment deadline), withid. § 7511(a)(1) (requiring attainment under same constraints), the RACM requirement is to be understood as a means of meeting the deadline for attainment, Approval, 66 Fed. Reg. at 610/2. Because the statutory provision is ambiguous and the EPA's construction of the term "RACM" is reasonable, we defer to the Agency. See Chevron, 467 U.S. at 843,104 S. Ct. at 2781-82 .
Id.
However, though our opinion defers to the EPA in exempting
certain proposed RACMs from the requirements of the CAA, we must
impress upon the EPA that it has a duty to: (1) demonstrate that
it has examined relevant data, and (2) provide a satisfactory
explanation for its rejection of those proposed RACMs and why they,
individually and in combination, would not advance the Beaumont
area's attainment date. See Ober , 243 F.3d at 1195 (quoting
American Lung Ass'n v. EPA ,
CONCLUSION
Accordingly, we REVERSE the portion of the EPA's final action at 66 Fed. Reg 26,914 (May 15, 2001) granting the Beaumont area an extension of its attainment date. However, we AFFIRM the portion of the EPA's final action that treats as potential RACMs only those measures that would advance the attainment date and considers implementation costs when rejecting certain control measures. We REMAND this case to the EPA for proceedings consistent with this opinion. On REMAND , the EPA must describe the standard under which it has rejected certain proposed RACMs supported by a plausible explanation.
AFFIRMED in part, REVERSED in part, and REMANDED.
Notes
[1] Notwithstanding table 1 in