TREASURE STATE RESOURCE INDUSTRY ASSOCIATION, Pеtitioner v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Administrator, U.S. Environmental Protection Agency, Respondents.
Nos. 13-1263, 13-1264, 14-1164, 14-1093.
United States Court of Appeals, District of Columbia Circuit.
Decided Nov. 3, 2015.
Argued Sept. 16, 2016.
Chiquita points to the Supreme Court‘s declaration in Seattle Times Co. v. Rhinehart that discovery is conducted in private and that members of the public have no unfettered right to access documents obtained through discovery. 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). But Seattle Times was about discovery, not FOIA, and “the FOIA disclosure regime ... is distinct from civil discovery.” Stonehill v. IRS, 558 F.3d 534, 538 (D.C.Cir.2009). “[W]hile informatiоn disclosed during discovery is limited to the parties and can be subject to protective orders against further disclosure, when a document must be disclosed under FOIA, it must be disclosed to the general public and the identity of the requester is irrelevant to whether disclosure is required.” Id. at 538-39. Because Chiquita‘s objection on this score derives from the distinct characteristics of discovery, which are not relevant to the purpose or text of FOIA, it cannot succeed.
IV
For the foregoing reasons, we affirm the judgment of the district court and vacate the injunction pending appeal.
Norman J. Mullen, Special Assistant Attorney General, Office of the Attorney General for the State of Montana, was on the brief for amicus curiae Stаte of Montana in support of remedy of reversal urged by petitioner Treasure State Resource Industry Association in 13-1263 and 14-1164.
Amanda Shafer Berman, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were John C. Cruden, Assistant Attorney General, and Mike Thrift, Counsel, U.S. Environmental Protection Agency.
Before: GRIFFITH and MILLETT, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
WILLIAMS, Senior Circuit Judge:
The Clean Air Act,
Within two years after a new NAAQS is established (extendable as in this case to three for want of adequate data),
On August 5, 2013 EPA designated 29 areas as not meeting its new SO2 standards. Air Quality Designations for the 2010 Sulfur Dioxide (SO2) Primary National Ambiеnt Air Quality Standard, 78 Fed. Reg. 47,191/3 (“Final Rule“). Each of the two petitioners now before us, Treasure State Resource Industry Association and United States Steel Corporation, challenges one of these 29 designations: the Association attacks the one for part of Yellowstone County, Montana, and U.S. Steel challenges the one for part of Wayne County, Michigan. Each sought reconsideration by EPA, unsuccessfully. 79 Fed. Reg. 18,248/3 (Apr. 1, 2014); 79 Fed.Reg. 50,577/3 (Aug. 25, 2014).
We deny the petitions for review. Except insofar as both are attаcks on EPA‘s August 2013 designations with respect to the 2010 SO2 NAAQS, the two claims have virtually nothing in common. We take Montana first, then Michigan.
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The Association is “a trade association comprised of natural resource industries and associations, labor unions, consulting firms and law firms, and recreation organizations located throughout Montana.” Petitioners’ Br. iii. Its standing is clear and uncontested; its members are located within the nonattainment area and are subject to regulations resulting from the designation. The Associаtion‘s primary arguments are: (1) that the data on which EPA relied were so unreliable that its reliance was arbitrary and capricious,
The Association claims that EPA failed to follow its regulations because Montana, which collected the monitoring data, had an “outdated” Quality Assurance Project Plan (“QAPP“) for dаta collection. In particular, EPA regulations require that states have a QAPP that
ensure[s] that the monitoring results: (a) Meet a well-defined need, use, or purpose; (b) Provide data of adequate quality for the intended monitoring objectives; (c) Satisfy stakeholder expectations; (d) Comply with applicable standards specifications; (e) Comply with statutory (and other) requirements of society; and (f) Reflect consideration of cost and economics.
The Association‘s last data-quality claim is that EPA inappropriately applied a “weight of evidence” standard in its evaluation of the air quality monitoring data. Specifically, it says, EPA‘s regulation requiring use of the “weight of evidence” was promulgated only weeks before comments were due on EPA‘s proposed SO2 designations and well after issuance of the new NAAQS standard. 78 Fed.Reg. 3,086, 3,283/3-3,284/1 (Jan. 15, 2013). Given this timing, the Association claims that the use of the new “weight of evidence” standard was post hoc. But in its response to the Association‘s petition for reconsideration EPA observed that in promulgating the standard it had merely codified its long-established prаctice in review of data quality, EPA Denial Letter to Treasure State at 6, J.A. 302, and the Association offers only lame arguments to refute that contention.
As to retroactivity, the Association‘s argument turns on the fact that EPA used data from as far back as 2009 to make the nonattainment designation under the June 2010 SO2 NAAQS regulation. Thus it imposed special regulatory burdens on parties in Yellowstone County as a direct result of activities that took place in 2009, and the first half of 2010, before promulgation of the June 2010 NAAQS rulе. The regulatory burdens do not flow instantly from the nonattainment designation, but they flow ineluctably. Designation of an area as nonattainment triggers an obligation for the state within which the area is located to modify its SIP (or create one), with the goal of bringing the area into attainment. To that end the SIP must require “all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoрtion, at a minimum, of reasonably available control technology).”
The Act and EPA‘s enforcement strategy made it highly likеly that data pre-
The Supreme Court will refuse “to give retroactive effect to statutes burdening private rights unless Congress ha[s] made clear its intent.” Landgraf, 511 U.S. at 270. (The due process clause also may place limits on retroactive burdens, see, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), but is not in play here.) We have already found, in a case involving a party‘s attempt to have a nonattainment designation made effective before EPA actually issued the designation, that the sections of the Act relating to nonattainment “contain no language suggesting that Congress intended to give EPA the unusual ability to implement rules retroactively.” Sierra Club v. Whitman, 285 F.3d 63, 68 (D.C.Cir.2002).1 Thus a finding that EPA‘s Final Rule had retroactive effect (within the meaning of Landgraf) would render it impermissible under the attainment designation provisions of the Act.
Although Landgraf requires that courts evaluating a rule for retroactivity ask “whether the new provisiоn attaches new legal consequences to events completed before its enactment,” that is far from the end of the story; “[a] statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute‘s enactment.” 511 U.S. at 269-70. The most concrete factors are “considerations of fair notice, reasonable reliance, and settled expectations,” id. at 270 (citations omitted), to which we now turn.
The typical form of unfairness that retroaсtivity may wreak is by radically undermining the value of costs that parties incurred in reasonable reliance on continuation of the status quo, or by discouraging parties from incurring costs that by virtue of the new rule might have yielded net savings. An example of the first would be decisions to build or improve a plant for compliance with the old standards-changes that as a result of the new rule and the nonattainment designation may require costly retrofitting. A cost that knowledge of the new rule and nonattainment classification might have encouraged would be building to the resulting specifications-again in order to avoid retrofitting costs that would stem from an improvement that complied merely with the old regulatory landscape. (A further advantage would have been the chance of avoiding nonattainment designation-and its attendant regulatory entanglement-by improving the area‘s overall air quality,
The absence of such evidence is hardly surprising in light of the established rules governing nonattainment designation and the ample public notice of the impending change in the NAAQS. The Act itself requires that “at five-year intervals ... the [EPA] Administrator shall complete a thorough review of the NAAQS and revise them as appropriate.
Finally, the Assoсiation challenges EPA‘s denial of its reconsideration petition. 79 Fed.Reg. 50,577/3. Its main argument in its petition for reconsideration was that if EPA had considered new data from 2013 it would have found that Yellowstone County was no longer out of attainment. Petition for Reconsideration or Repeal of a Portion of the Final Rule and Request for an Administrative Stay Pending Agency Proceedings at 7-8, J.A. 332-33. There are at least two problems with this claim. First, the 2013 data were not complete or certified at the time that the Association suggested that they be used. Id. at 6 n. 28. And using only data for 2010-2012 would not have undone the county‘s violation of the NAAQS. Responses to Comments at 51, J.A. 437.
Second, a ruling that an agency‘s disregard of data gathered after final agency action was arbitrary and capricious could make it difficult for many actions to go into effect. Since new data may continue to pour in, reconsideration based on such data could materially delay arrival at a final decision. And the Act clearly did intend to produce final rules, since “Congress imposed deadlines on EPA and thus clearly envisioned an end to the designation process.” Catawba County, N.C. v. EPA, 571 F.3d 20, 51 (D.C.Cir.2009). Further, parties in areas designated nonattainment aren‘t without recourse: Congress explicitly provided a re-designation process in
The Association‘s remaining arguments, alleging data quality deficiencies that it claims the agency ignored in finalizing the Montana designation, were not specifically raised until reconsideration and were then fully and reasonably disposed of by EPA in its denial.
We therefore uphold the Final Rule‘s designation of part of Yellowstone County as nonattainment.
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We turn now to the Michigan designation. U.S. Steel has a plant located in the nonattainment portion of Wayne County and does not dispute the designation of that portion as nonattainment. But it argues that it was not reasonable for EPA to designate part of Wayne County as nonattainment without simultaneously making the same determination for at least that portion of neighboring Monroe County that includes the Monroe Coal-Fired Power Plant (the “Monroe plant“). Pointing to the statutory criteria for nonattainment designation,
U.S. Steel must first establish its standing by showing satisfaction of the now-standard elements of injury in fact, causation and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Once we understand the process for remedying nonattainment in an area so designated, it is apparent that U.S. Steel meets those requirements.
U.S. Steel has suffered an injury in fact that is “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical,‘” id. at 560 (citations omitted), because the designation of Wayne County as nonattainment without the inclusion of the Monroe plant area subjects it to a markedly higher risk of facing costly (or more costly) regulatory pollutiоn controls. EPA claims that there is little risk of such an injury, since Michigan can elect to address nonattainment in Wayne County by “impos[ing] emission reduction requirements on all facilities that it determines are, in fact, contributing to nonattainment.” Respondents’ Br. 40. Thus, says EPA, the burden of reducing pollution could be shared between U.S. Steel and the Monroe plant regardless of whether the Monroe plant is included in the nonattainment area. EPA‘s contention is a considerable oversimplification.
The Act gives a kind of рrimacy to reductions from sources in the nonattainment area itself, and we have read it as sharply prioritizing reductions inside the nonattainment area. Speaking of the SIP required for a nonattainment area, the Act provides:
(1) In general
Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.
Act, § 172(c)(1),
Given that understanding of
EPA also argues that its Final Rule is not final within the meaning of the APA,
Reaching the merits, however, we find neither a violation of the Act nor any arbitrariness in EPA‘s action. For its SO2 rulemaking, EPA issued guidance to the states for making their initial recommendations, indicating that “the perimeter of a county containing a violating monitor would be the initial presumptive boundary for nonattainment areas.” 78 Fed.Reg. at 47,195/2. Nothing in the Act or its associated regulations prevents EPA from pre-
Of course, EPA‘s approach could still be arbitrary and capricious even in the absence of a statutory or regulatory mandate. Under the APA, EPA must “conform to ‘certain minimal standards of rationality.‘” Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 521 (D.C.Cir.1983). But EPA has offered many reasons that justify its decision to defer a decision on Monroe County. Most importantly, there was uncertainty over whether pollution from Monroe County is, in fact, substantially contributing to air quality in Wayne County. The Monroe plant is approximately 54 kilometers away from the violating Wayne County monitor. Responses to Comments at 27, J.A. 413; Michigan Technical Support Document at 6, J.A. 654. Additionally, another monitor located between the Monroe plant and the violating Wayne County monitor-and significantly closer to the former than to the latter-showed no exceedances. Responses to Comments at 28, J.A. 414. Finally, EPA reasonably asserted the need for further study on the effect of recently-installed emission control scrubbers on the Monroe plant. Michigan Technical Support Document at 6, J.A. 654. Given the current uncertainty, postponement of the classification of Monroe County was not arbitrary and capricious.
Finally, U.S. Steel‘s challenge to the denial of its petition for reconsideration fails. In denying that petition, EPA thoroughly and reasonably addressed U.S. Steel‘s arguments. See EPA Denial Letter to U.S. Steel, J.A. 598-610.
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The petitions for review of the Final Rule and EPA‘s deniаl of petitions for reconsideration are accordingly
Denied.
WILLIAMS
SENIOR CIRCUIT JUDGE