*1 Yet as Sea- as the circus. shows such ENERGY STALLION out, WHITE Congress did correctly points
World CENTER, LLC, hint that way indicate or even any not in encompassed terms an Petitioner vague the Clause’s authority Depart- to the implicit grant and re-make of Labor ment sports of America’s undefined swath
some PROTECTION ENVIRONMENTAL and entertainment behemoth. AGENCY, Respondent. world, plausi- simply it is In the real passing when Congress, Pediatrics,
ble to assert Academy of American Act, Safety and Health Occupational al., et Intervenors. Depart- to authorize the silently intended 12-1101, 12-1102, 12-1147, 12-1100, Nos. sports familiar of Labor to eliminate ment 12-1174, 12-1175, 12-1172, 12-1173, 12- punt practices, such as and entertainment 1176, 12-1177, 12-1178, 12-1180, 12- NFL, in NAS- speeding in the returns 1181, 12-1182, 12-1183, 12-1184, 12- CAR, or the whale show SeaWorld. 1185, 12-1186, 12-1187, 12-1188, 12- Tobacco FDA v. Brown & Williamson 12-1193, 1189, 12-1190, 12-1191, 12-1192, Corp., 529 U.S. 12-1194, 12-1195, 12-1196. (2000) (“[W]e are confi- 146 L.Ed.2d could not have intend- dent that Appeals, United States Court economic delegate a decision such ed District Columbia Circuit. agency to an in so political significance fashion.”). cryptic a Argued Dec. 2013. April Decided sports or entertainment
To the extent raise concern about risk activities extant
injury participants, several significant authority
legal possess bodies dangers: clamp down on unreasonable regu- state
Congress, legislatures, state
lators, I state tort law. applying courts position
take no here on Sea- matter the NFL or for that
World —or subject to more
NASCAR—should be regulation or liabili-
stringent government
ty, voluntarily should make otherwise question That policy
its activities safer. My legal disagreement us.
not before majority opinion boils down question:
one basic Who decides? Under law, Department it is not the
current respectfully I dissent.
Labor. *5 Gordon, Zeugin
Lee B. and Neil D. As- General, Attorney sistant Office of the At- torney Michigan, General for the State of State, argued Industry, the causes for joint Labor Petitioners. With them on the Brownell, briefs were F. William Lauren Freeman, Horner, Bill E. Elizabeth L. General, Schuette, Attorney Office of Attorney of Michi- General the State Bursch, General, Attorney S. Office of the General for the Solicitor gan, John J. Nebraska, Attorney Spohn, Assistant Gener- of Katherine J. Manning, Peter State General, al, Attorney General, Of- Strange, Attorney Luther Special Counsel for the State Attorney General, of the General Wayne Stenehjem, Attorney fice Of- Alabama, Attor- Geraghty, Michael C. of Attorney fice of the General for the State General, Attorney Gener- ney Office of Dakota, Olson, Margaret of North I. Ste- Alaska, E. of Steven Muld- al for the State Kohl, Eugene Smary, E. ven C. Sarah C. Glaser, Y. er, Attorney, George Peter S. Pruitt, Lindsey, Attorney E. Scott Gener- Higgins, David B. Sugiyama, Michael H. al, Attorney Office of the General for the Rifkin, Jr., Mark DeLa- Casey, Lee A. W. Oklahoma, Eubanks, P. Clayton State of Grossman, David Flan- quil, Andrew M. General, Attorney Assistant Michael DeW- Rubrecht, Kathy G. Beck- nery, Gale Lea ine, General, Attorney Office of the Attor- Ritts, ett, Kropp, L. Leslie Sue Edward Ohio, ney for the State of Dale T. General General, Horne, Attorney Office Thomas Bachmann, H. Gregg Vitale and Assistant of Attorney General for the State of General, Wolff, Attorneys Spe- Robert M. Arizona, P. T. Joseph Mikitish James Counsel, Wilson, Attorney cial Alan Gen- General, Skardon, Attorneys Assistant eral, Attorney Office of the General for General, McDaniel, Attorney Office Dustin Carolina, Emory James State South Attorney of the General for .the State Smith, Jr., Deputy Attorney Assistant Jones, Arkansas, Akin Kendra Assistant General, Shurtleff, Attorney Mark L. Gen- Moulton, General, Attorney L. Charles eral, Attorney General for Office of the General, Pame- Attorney Senior Assistant Utah, Abbott, Attorney Greg the State of General, Bondi, Attorney la Office Jo General, Attorney of the General Office for the Attorney General State Niermann, Texas, Jon State Florida, Attorney, Glogau, A. Jonathan Smith, Chief, Mary Mark E. Walters Wasden, General, Attorney Lawrence G. General, Attorneys Kenneth T. Assistant Attorney for the Office General Cuccinelli, General, II, Attorney Office Idaho, Crandall, Arthur State of Grant Attorney General for the Common- *6 Trisko, III, Traynor, Eugene Gregory M. Morrisey, Patrick At- Virginia, wealth of General, Zoeller, Attorney F. Office of the General, Attorney torney Office of the Indiana, for the of Attorney General State Virginia, of General for the State West Tachtiris, Deputy Attorney Gener- Valerie Attorney Taylor, Deputy B. Senior Silas Schmidt, al, Lane, Attorney Dennis Derek General, Holmstead, Y. Jeffrey R. Sandra General, Attorney Office of the General Attorney Snyder, Gregory Phillips, A. Kansas, Jeffrey of A. Cha- State General, Attorney of the General Office General, nay, Deputy Attorney Henry V. Jerde, Wyoming, Jay A. for the State of III, Nickel, George Sibley P. Eric A. Gro- General, Attorney Conway, Deputy Jack ten, Marwell, Riley, Jeremy John A. C. General, Attorney Attorney Office of the Thiele, Harold E. Pizzetta Christopher C. Kentucky, Bart E. for the State of General General, III, of Attorney Assistant Office L. Cassidy, and Katherine Vaccaro. Attorney for the State of Mis- General Industry argued Bill the cause for General, Cobb Koster, Attorney sissippi, Chris him on Specific Petitioners’ Issues. With Attorney for the Office of the General Nasi, were Michael Leslie Sue Missouri, the briefs Layton R. State of James Holmstead, Ritts, Y. McManus, Jeffrey R. Sandra Attorneys, D. Paul John J. Sales, Clement, A. Clement, Sales, Snyder, Paul D. Nathan A. Marie Nathan Lisa General, Kohl, Smary, Eugene E. Sarah Bruning, Attorney Steven C. Jaeger, Jon General, Attorney Cassidy, Attorney Katherine L. Office of the Lindsay, Bart E. C. Iowa, Jr., Lane, of David R. General for the State Vaccaro, Hayes, Dennis John C. Sheridan, General, Attorney Thiele, Assistant Riley, Christopher C. C. John A. General, Attorney Office George Jepsen, Gidiere, III, Moore, III, Stephen P. Grady Attorney General for the State of of Casey, III. Lee and Thomas Connecticut, Kimberly P. Massicotte and Eric ar- Sanjay Narayan and Schaeffer Levine, Attorneys Matthew I. Assistant Peti- causes for Environmental gued the General, General, Madigan, Attorney Lisa them on the briefs were tioners. With Attorney for the Office of the General Pew, Farrell, Whitney James S. Neil Illinois, of Matthew J. Dunn and State Weeks, Ann Brewster and Darin Gormley, Karr, Attorneys T. Assistant Gen- Gerald Schroeder. eral, Gansler, Douglas Attorney F. Gen- argued David Bookbinder the cause and eral, Attorney of the General for Office Julander En- petitioner filed the briefs for R. Maryland, the State of Roberta ergy Company. James, General, Attorney Assistant Mi- General, Delaney, Attorney chael A. Of- Franco, Wigmore, Michael B. Sandra P. Attorney fice of the General for the State Conrad, Brand, Robin S. Rachel and Shel- (cid:127) Brooks, Hampshire, of New K. Allen amicus don Gilbert were on brief for General, Attorney Assistant Janet Senior of of the curiae The Chamber Commerce Mills, General, Attorney T. Office of the in support United States of America Maine, Attorney General for the State of Industry Petitioners. Reid, Attorney D. Gerald Assistant Gen- Hostetler, Oakes, R. Eric G. Matthew eral, Swanson, General, Attorney Lori Of- Berman, Attorneys, and Amanda S. U.S. Attorney fice of the General for the State Justice, Department argued the causes Minnesota, Kieley, Max At- Assistant respondent. With them the brief General, Schneiderman, torney Eric T. Blake, Wendy Attorney, L. Envi- U.S. General, Attorney Attorney Office of the Agency. ronmental Protection York, General for the Mi- State New Hoffer, Attorney Melissa Assistant Donovan, Myers chael J. and Kevin P. General, Attorney Office of the General General, Attorneys Assistant Ellen F. Massachusetts, for the Commonwealth of Rosenbaum, General, Attorney Office of argued the cause for State and Local Attorney General for the State Or- in support Government Intervenors Garrahan, egon, Paul A. Assistant Attor- her Respondent. With on the brief were ney-in-Charge, Gary King, Attorney K. General, Coakley, Attorney Martha Office General, Attorney Office of the General Attorney General for the State of *7 Mexico, Stephen for the State of New R. Massachusetts, Tracy Triplett and Carol Farris, General, Attorney Roy Assistant Iancu, General, Attorneys A. Assistant General, Cooper, Attorney of the Office Harris, General, Attorney Kamala D. Of- Attorney General for the State of North Attorney fice of the General for the State Carolina, Gulick, Deputy James C. Senior California, Richards, of L. Super- Janill General, Attorney Jernigan, J. Allen Attorney General, vising Deputy Susan Bernstein, Bircher, Amy Marc and L. Durbin, General, Deputy Attorney L. General, Jo- Special Deputy Attorneys Wil- Biden, III, General, seph Attorney Sorrell, General, R. Of- liam Attorney H. Office Attorney fice of the General for the Attorney State General for State Delaware, Satterfield, Vermont, Schwartz, M. Dep- Valerie Thea J. Assistant At- General, Miller, General, Nilson, uty Attorney A. torney George Thomas L. Wil- Kilmartin, Jr., Respondents for Intervenor Phelan, F. on the brief Peter R. liam General, Attorney Opposition to Brief of Petitioner Julander of the Attorney Office Island, Company. Energy of Rhode the State General Schultz, At- Assistant Special George S. Babich, Jacobs, Wendy B. Adam and Nathan, General, B. Attor- Irvin
torney A. Livermore were on the brief Michael General, Attorney Gen- of the ney Office Policy Integ- for amici curiae Institute Columbia, Amy E. for the District eral rity, support respondent. et al. Counsel, McDonnell, General Deputy Solomon, Benna Ruth Christopher King, GARLAND, Judge, Before: Chief and Jeremy Toth. and KAVANAUGH, and Circuit ROGERS Judges. the cause for argued Donahue Sean H. Environmental, Health, Envi- and Public * PER CURIAM: In- Group Respondent
ronmental Justice him on the brief were With tervenors. In the Environmental Protection Carbonell, Ann Campos, A. Tomás Pamela Agency promulgated emission standards Schroeder, Weeks, T. Darin Brewster air pollu- for a number of listed hazardous Pew, Gormley, Sanjay Neil E. James S. electric by tants emitted coal- and oil-fired Walke, D. Sut- Narayan, John John Na- utility generating steam units. See appear- an iles. Vickie L. Patton entered Hazardous tional Emission Standards for ance. Air Pollutants From Coal- Oil-Fired Generating Utility Electric Steam Units the cause for argued
Brendan K. Collins and Standards Fossil- Industry Respondent Intervenors. With Performance for Utility, Fuel-Fired Electric Industrialr- B. him on the brief were Robert McKin- Commercialr-Institutional, In- and Small Boudreau, Jr., Erik stry Lorene L. S. Steam dustrialr-Commercialr-Institutional Jaffe. Units, Final Generating Glaser, Y. F. George Sugiyama, Peter S. 2012). (Feb. case, In complex Freeman, Brownell, Lauren E. William challenges to the Final we address the Horner, L. David Zeugin, Lee B. Elizabeth State, by Industry, peti- and Labor Rule Jr., Casey, Lee A. Mark W. B. Rivkin tioners, Industry specific petitioners Grossman, Jeremy DeLaquil, Andrew M. Rule, by Environmen- aspects Marwell, Groton, Jeffrey Eric A. R. C. Energy Julander petitioners, tal Holmstead, Snyder Y. were on and Sandra reasons, following we Company. For Intervenors in re- Industry the brief for challenging the Final deny petitions to Environmental Petitioners. sponse Rule. an Henry appearance. Nickel entered V. Glaser, George Sugiyama, Y. Peter S. I. Williams, Brownell, F. Hahnah William § 112 of the Freeman, enacted Zeugin, B. Eliza- Lauren E. Lee 91-604, 4(a), Act, Marwell, Air Pub.L. No. Horner, Eric Clean Jeremy L. C. beth (1970), haz Holmstead, to reduce Groton, 84 Stat. Jeffrey R. Sandra A. (“HAPs”). Sierra Cobb, Nasi, pollutants air David ardous Snyder, Y. Bill Michael *8 EPA, 976, 979 353 F.3d Jr., Casey, Mark C lub v. Rivkin Lee A. W. B. Rep. 101-490, (D.C.Cir.2004); H.R. No. were DeLaquil, and Andrew M. Grossman * I, II, dissenting opinion in Part II.B.2 by Judge Rog- as are his are Parts and IV written concurring opinion Part IV. Judge Kavanaugh, by and his Part III is written ers.
1230
7412(c)(9)(B).
(1990).
§
HAPs
150
statute defined
as U.S.C.
For each listed
judg-
... which in the
pollutant[s]
“air
“category
subcategory major
or
of
sources
the Envi-
ment of the Administrator
HAPs,
[of
and area sources” of
EPA must
(“EPA”)
Agency
ronmental Protection
] promulgate
emission standards.
CAA
cause,
to,
pollution
air
or contribute
which
7412(d)(1).
112(d)(1),
§
§
42 U.S.C.
Sec-
may reasonably
anticipated
to result in
112(d)
relevant,
tion
provides, as
that emis-
mortality
an
or an
increase
increase
sion standards
irreversible,
incapacitating
serious
re-
require
degree
shall
the maximum
versible,
112(a)(1),
§
illness.”
84 Stat. at
reduction in emissions of the hazardous
form, § 112
original
required
1685. In its
(in-
pollutants subject
air
to this section
a
publish
containing
list
“each
emissions,
cluding prohibition
a
on such
air
in-
pollutant
hazardous
which [it]
achievable)
where
that the Administra-
an
tends to establish
emission standard.”
tor, taking into consideration the cost of
112(b)(1)(A),
§
the list of source under was neither nor 112(c) 16,002-08. “necessary.” of the CAA.’’Id. Id. at In re- comments, sponding to EPA that if stated 2005, Finding In EPA reversed its 2000 emissions, regulate it were to EGU then coal- and oil-fired and removed EGUs regulate only would those substances categories from the of source under list specific “appropriate which it had made a 112(c). § Revision December 2000 necessary” and determination. States and Regulatory Finding on the Emissions of groups petitioned other for review and this Air Pollutants From Electric Hazardous Decision, Listing court vacated the 2005 Generating Utility Steam Units and the Jersey, holding New 517 F.3d at that Removal Coal- and Oil-Fired Electric attempt EPA’s to reverse its December Utility Generating Units From the Steam 112(c) List, listing decision unlawful was because 15,994, Fed.Reg. Section (Mar. 2005) (“2005 15,994 “unambiguously had limit[ed] Delisting De- cision”). sources, EPA’s discretion to remove in- change This was based on EPA’s 112(n)(l)(A) EGUs, 112(c)(1) § interpretation cluding revised from the section and, extent, to they some revised assess- list once have been added to it.” Utility Study. ment of the results of the comment, after notice and EPA authority EPA concluded that it lacked Finding regula- its 2000 that “confirm[ed]” 112(n)(l)(A) § regulate under on the tion of 112 “ap- EGU emissions under non-health (e.g., basis of hazards environ- propriate Rule, necessary.” and harms), solely” mental and should “focus Fed.Reg. proposed 9310-11. In the directly on the health effects attributable rule, EPA stated that “the December 2000 emissions, to EGU rather than on EGUs’ Finding valid at was the time it was made to overall pollutant contribution levels. Id. based on the information available to the 15,998. Further, decided could Agency at that time.” Proposed relevant, consider other “situation-specific 24,976, 24,986, 24,994-97 (May factors, including cost” that affect 2011) (“NPRM”). Although of the view regulation “appro- under that no further evidence required was priate.” 16,000-01. Critically, Id. at affirm Finding, the 2000 EPA had conduct- determined that it must make “appro- quantitative ed additional qualitative priate necessary” finding by reference analyses “confirming] that it ap- remains to health hazards will remain “after propriate necessary today imposition of requirements of’ the EGUs under CAA section 112.” Id. at added) 15,998 CAA. Id. at (emphasis (quot- 24,986; 24,999-25,020. see id. With re- 112(n)(l)(A), ing CAA 42 U.S.C. spect to the “appropriate,” term EPA ex- 7412(n)(l)(A)). EPA interpreted these plained that it “changing] position “requirements” other include “not taken 2005 that appropriate finding requirements already those imposed and in effect, could not be based on environmental ef- requirements but also those alone”; fects “revisiting the 2005 reasonably anticipates interpre- will imple- required tation that Agency mented” and to consid- directly which “could either er HAP indirectly result in emissions from EGUs without utility reductions of 15,999. HAP considering emissions.” impacts Id. at cumulative of all Conclud- ing emissions”; regulation sources of HAP provisions “revising under other of the CAA adequately interpretation would required address EGU mercury Agency emissions of and other to evaluate the hazards to public HAPs, EPA regulation determined that health imposition requirements after See id. at by coal- and oil-fired EGUs. 2005 in- CAA”; “rejecting the 9487-93. Agency authorizes terpretation cost), if even (e.g., factors other consider for review chal petitions Several emitted that HAP agency determines address, in the Final Rule. We first lenge *11 health public to a hazard pose EGUs by State, II, challenges of the Indus Part environment).” 24,989. (or Id. at III, In Part try, petitioners. and Labor “necessary,” the term respect to With specific Industry petitioners’ we address its inter- rejected as “unreasonable” IV.A, In Part we address the chal issues. under regulation in 2005 that pretation by petitioners, the Environmental lenges if no other “necessary” only § 112 was IV.B, Energy in Part Julander Com and imple- in the CAA—whether provision standing. addressing the sub pany’s “direct- anticipated or mented —could Rule, challenges to the this stantive to reduce HAP emissions indirectly” ly or must determine under CAA court 24,992. Id. at acceptable levels. promulgated the Final Rule was arbitrary capri or a manner that was interpreted it explained discretion, cious, or otherwise 112(n)(l)(A) an abuse of
§ with law. See CAA accordance it appro- to find Agency require 7607(d)(9)(A). 307(d)(9)(A), § § 42 U.S.C. under CAA regulate EGUs priate ‘arbitrary capricious’ standard “The determines Agency 112 if the section presumptively agency action deems HAP or more of one that the emissions a minimum the action meets provided valid pose an identified from EGUs emitted Club, Sierra rationality standard.” public health or hazard to potential or Res. (quoting F.3d at 978-79 Natural finding time the Def. at the the environment EPA, F.3d Council it finds that Agency If the is made. “[ijf (D.C.Cir.1999)). is, EPA acted That it must find regulate, appropriate statutory authority, delegated its within under sec- necessary regulate EGUs factors, and of the relevant considered all potential 112 if the identified tion be connection reasonable demonstrated the environ- health or public hazards to and its deci the facts the record tween addressed adequately not be ment will sion, uphold determination.” we will requirements of of the imposition EPA, 1053, 1064 51 F.3d Ethyl Corp. v. Moreover, necessary the CAA. (D.C.Cir.1995). par The court will show 112 for utilities under section regulate agency’s deci deference “where ticular reasons, including, for of other a number complex on an evaluation sion rests will 112 standards example, that section technical agency’s scientific data within the in EGU permanent assure reductions Browner, 120 Corp. v. Troy expertise.” emissions, assured which cannot be HAP (D.C.Cir.1997); also see F.3d other requirements based on Council, 490 Natural Res. v. Or. Marsh CAA. 360, 377, 104 L.Ed.2d U.S. 24,987-88. affirmed that EPA also (1989). properly and oil-fired were EGUs coal- 112(c). under category as a source listed II. 24,986. to these EPA adhered See id. State, petitioners Labor Industry, and in the Final 77 Fed.
interpretations
appli-
interpretation
EPA’s
challenge
February
Accordingly, on
Reg. at 9311.
necessary”
“appropriate
cation of the
16, 2012,
stan-
promulgated
emission
112(n)(l)(A).
§in
requirement
HAPs emitted
a number of
listed
dards
A.
anticipated to occur as a result of emis-
utility
sions
electric
generating
steam
matter, petitioners
As a threshold
con-
pollutants
units of
listed under subsection
Finding
tend that the 2000
was unlawful
(f)
imposition
after
requirements
because EPA did not allow notice and
112(n)(l)(A),
this Act.” CAA
42 U.S.C.
finding,
quantify
comment on the
did not
7412(n)(l)(A)
added).
(emphasis
Con-
mercury
the relevant
emissions and associ-
gress then directed: “The Administrator
risks,
ated health
and did not describe
shall
utility
gener-
electric
steam
strategies”
required
“alternative control
ating
section,
under
units
if the Ad-
112(n)(l)(A).
under
Because the De-
ministrator finds
regulation
such
is appro-
2000 notice
“fundamentally
cember
priate
necessary
considering after
flawed,” they contend it “could have no
*12
study required by
results
the
this sub-
legal consequences”
provide
and “could not
added).
paragraph.”
(emphasis
Apart
112(c)
§
listing
the basis for a
decision.”
from the instruction to “consider[
the re-
]
State,
(here-
Industry & Labor Pet’rs’ Br.
sults of
[Utility Study]”
public
the
Br.”)
inafter “SIL
prop-
27-28. Without a
emissions,
health hazards from EGU
the
112(c),
contend,
§
listing
they
er
under
express guidance
statute offers no
regard-
authority
EPA has no
regulate
EGUs
ing what
EPA required
per-
factors
is
or
112(d).
§
under
mitted to consider in deciding whether
The court need not decide whether
regulation under
112 “appropriate
is
and
EPA’s
2000 “appropriate
December
and
necessary.” Neither does it define the
necessary” finding
procedurally
or
“appropriate”
words
“necessary.”
See
substantively valid
because
reconsid-
NPRM,
24,986;
Fed.Reg.
at
2005 List-
ered and
“confirm[ed]”
determination
Decision,
ing
15,997.
Fed.Reg.
at
Peti-
NPRM,
in the Final Rule. See
76 Fed.Reg.
object
tioners
to how EPA chose to fill
24,977;
Rule,
at
Final
Fed.Reg.
at
gaps.
these
9310-11, 9320. For the reasons we will
discuss, we hold that
finding
EPA’s
in the
In matters of statutory interpretation,
Final
substantively
Rule was
proce-
applies
the court
the
part
familiar two
test
valid,
durally
consequently any pur-
U.S.A.,
under Chevron
Inc. v. Natural Re
ported defects in
Finding
the 2000
have
Council, Inc.,
sources
467 U.S.
Defense
cured,
been
rendering petitioners’ chal- 837, 842-43, 104
2778,
S.Ct.
B.
If the court
“ascertains that
had
petitioners’
The crux of
challenge to the
an intention on
precise question
the
Final
issue,”
Rule focuses on EPA’s interpretation
2778,
id. at 843 n.
104 S.Ct.
“that
phrase
“appropriate
necessary”
is the end of the matter” and the court
112(n)(l)(A),
give
U.S.C.
“must
effect to
unambiguously
the
7412(n)(l)(A).
The context of
expressed
Congress,”
intent of
id. at 842-
phrase
is as
special
If, however,
follows.
subsec-
NPRM,
Fed.Reg.
(emphasis
“appropriate
necessary”
whether
Rule,
added);
§
to
Fed.Reg.
see Final
EGUs under
112. Because
approach
EPA’s
a permissible
that it
based on
9333-34.
concluded
had dis-
112(n)(l)(A),
§
construction of
cretion
is entitled
also
consider various other fac-
health,
upheld.
deference and must be
evaluating
to public
tors
hazards
including
regulation.
2. Costs
Noting
severity of
the nature and
the health
112(n)(l)(A)
§
2005 EPA construed
exposure
HAP
effects associated
to allow consideration of costs in determin
emissions;
degree of
confidence in ing
regulation
of EGU HAP emis
effects;
knowledge
our
of those health
sions is “appropriate,” petitioners contend
popu-
the size and characteristics of the
interpretation
“preclude
EPA’s new
by exposures
lations affected
to HAP
costs,”
consideration of
SIL Br.
“unrea
emissions;
magnitude
[and]
sonably
language
constrains
breadth of
exposures
and risks
112(n)(l)(A),”
They
SIL Br.
point
posed by
particu-
HAP emissions from a
dictionary
definition of “appropriate”
lar
category, including
source
how those
and to the
regulation
differences between
exposures
popula-
contribute to risk in
112(n)(l)(A)
of EGUs under
regulat
tions
exposures
with additional
to HAP
112(c),
ing
other sources under
and to
from other sources!.]
precedent
“only
court’s
where
NPRM,
24,992;
there is ‘clear
Fed.Reg.
congressional
see Final
intent to pre
at 9334.
clude consideration of cost’
we find
[do]
agencies
considering
barred from
costs.”
reasonably
relied
EPA,
SIL Br. 40 (quoting Michigan v.
112(c)(9)
delisting criteria to inform its
denied,
(D.C.Cir.2000),
F.3d
cert.
interpretation
statutory
of the undefined
532 U.S.
S.Ct.
149 L.Ed.2d
term
public
“hazard to
health.” Congress
*14
(2001)).
135
They contend that EPA’s new
specify
did not
types
what
or levels of
interpretation “is also unlawful
it
because
public health risks should be deemed a
Congress
eliminates
discretion that
in
112(n)(l)(A).
§
“hazard” for purposes of
tended EPA to exercise after completing
By leaving
statute,
in
gap
Con-
the Utility Study.” SIL Br. 41.
they
As
gress delegated
EPA
authority
to
it,
statutory
see
if the
“appropriate”
term
give
meaning
reasonable
to the term. Cf.
imposes
whatsoever,
any limit
it must at
Chevron,
843^44,
1237
argue that
was
EPA circumstances” —to
to do so. Id.
require
wanted
account costs to the
required
inter-
“to take into
[its]
the extent
that “[t]o
also noted
forth in
electricity generators
the one set
when decid
from
nation’s
differs
pretation
the basis
Br.
2005,”
“fully explained
EGUs.” SIL
ing
it had
whether
NPRM,
(citing
Id. at 9323
changes.”
(citing
such
Online Dic
39
MeRriam-WebsteR’s
(Even
Dictionary
24,986-93).
in
tionary;
Amerioan
New Oxford
“[n]othing precludes
ed.2005)).
(2d
definitions,
EPA noted
which
Yet these
assessing
considering costs
costs,
merely underscore
mention
do not
under sec-
regulation of [EGUs]
“appropriate”
“open-end
the term
of all the
light
appropriate
112 is
tion
ed,”
“inherently context-
“ambiguous,” and
—
presented.”
circumstances
facts and
Texas,
U.S.
dependent.” Sossamon v.
16,001
Decision,
Fed.Reg. at
Delisting
—,
1651, 1659, 179
L.Ed.2d
19.)
reacting
to comments
responding
n.
(2011);
Agen
Clean Air
Nat’l Ass’n of
cf.
reading of
“the better
position that
to its
(D.C.Cir.
EPA,
1221, 1229
cies v.
489 F.3d
is that
it does
‘appropriate’
the term
2007).
of costs
as-
consideration
allow for the
“appropriate” might
if the word
Even
health
public
hazards to
sessing whether
consideration in some con-
require cost
reasonably antici-
are
environment
or the
texts,
“appropriate”
reading
such
emissions,”
occur based
EGU
pated to
here,
Congress direct-
unwarranted
where
24,989,
NPRM,
EPA ob-
Fed.Reg. at
conclusions of
ed EPA’s attention to the
dictionary definition
served
hazards
study regarding public health
require consider-
does not
“appropriate”
§
Throughout
from EGU emissions.
had
and that commenters
ation of costs
explicitly where
Congress mentioned costs
statutory re-
express
an
identify
failed
EPA to consider them.
it intended
EPA also stated
to that effect.
quirement
Cf
112(d)(8)(A)®,
112(d)(2),
CAA
to consid-
reasonable to decline
that was
112(n)(l)(B),
112(f)(1)(B),
112(f)(2)(A),
statu-
express
of an
costs in the absence
er
7412(d)(2),
112(b)(2),
U.S.C.
because Con-
requirement
to do so
tory
7412(f)(1)(B), 7412(f)(2)(A),
7412(d)(8)(A)®,
enacting
principally
gress,
7412(b)(2).
Indeed,
7412(n)(l)(B),
in the
pub-
hazards to
mitigating
concerned
subparagraph
from HAP immediately
following
the environment
lic health and
Fed.Reg. 112(n),
expressly
required
Congress
emissions. See
had treated
CAA
Inasmuch
considered.
costs
*15
7412(n)(l)(B).
different-
of HAP emissions
regulation
112(n)(l)(B),
§
§
42 U.S.C.
EPA
Amendments because
ly in the 1990
A could
subparagraph
The contrast with
EPA con-
enough,
acting quickly
not
was
in-
Congress
stark.
“Where
more
be
listing
a
to make
it was reasonable
cluded
in one section of
language
particular
cludes
considering costs. See id.
without
decision
it in another section
but omits
statute
Act,
presumed
generally
is
the same
112(n)(l)(A)
face, §
neither
re-
On its
intentionally ...
in the
Congress
acts
prohibits
nor
EPA consider costs
quires
Russello
exclusion.”
disparate inclusion or
Indeed,
the word
doing
so.
States,
16, 23, 104 S.Ct.
464 U.S.
v. United
subparagraph
nowhere
appears
“costs”
(alterations
(1983)
omit-
296,
L.Ed.2d 17
statutory
any express
A. In the absence
ted);
Cnty., N.C.
Catawba
costs, petitioners
regarding
instruction
cf.
(D.C.Cir.2009).
of-
20,
Petitioners
F.3d
“appro-
dictionary definition
rely on the
by
Congress,
why
reason
compelling
no
fer
suitable
“especially
priate” meaning
—
“appropriate,”
the broad term
using only
in proper
“suitable or
compatible” or
agency
would have intended the same result —that
was
to consider
...
costs”
free
112(n)(l)(A).
§
considered—in
110(a)(2)(D),
costs be
under CAA
42 U.S.C.
legislative history
the dissent claims
7410(a)(2)(D),
as EPA
urged
had
in that
1265,
point,
“establishes” the
Dissent at
added).
case.
1241 before the question The 2778. 104 S.Ct. proper to consideration centrality of cost EPA have considered at “Should Dissent court is not decisionmaking,” regulatory threshold determina- Supreme making in its the costs 1261, makes clear Whitman 112(n)(l)(A)?” rather nec- but not Congress does under that tion believes Court point the at that to do so required Nor is Whitman EPA essarily agree. “Was found that Con- EPA has have in courts evaluation?” regulatory which in its case way the dissent would not in a costs were legislated why it concluded gress explained necessary” irrational.2 and “appropriate find of part the determination, Congress’s choice given and Dissent see generalities, Academic entering into that de- factors leave to the 1261-62, not demonstrate do EPA, and our petitioners, termination in as did reasonably proceed not could fail to demonstrate colleague, dissenting espe- congressional interpreting intent — judgment about considered that EPA’s who by academics cially generalities as was unlawful considered factors for fail- Supreme Court criticizing are inter- unreasonable and they impermissible an statutes congressional ing to read 112(n)(l)(A). left Congress by utterances of pretation is true The same do.3 manifestly separate accommodation to EPA “the especially single Justices — 865, interests,” in 104 S.Ct. concurring id. by competing one Justice statement re- another dur- 2778, all that question and a EPA did and Whitman a different statu- EGU Exactly how and when argument oral about it. ing quired of at 1261-62. Dissent tory regulated See is different section. to be are emissions approaches the different Nor do question. Administrations Bush and Obama reasons, hold that we For these do CAA implementing of costs
role need not consider reasonably concluded that administra- than demonstrate more and neces- making “appropriate costs change positions can may tions differ 112(n)(l)(A). under sary” determination long as an ade- so jeopardy, legal without Peti harms. Environmental 3. done as was provided explanation quate con- EPA was 865-66, contend tioners also Chevron, U.S. 467 See here. require, or Donovan, any congressional intent here 452 Inst. v. Textile Am. Mfrs. 2478, 490, 511-12, ... L.Ed.2d 69 economic permit, 101 S.Ct. to consider [EPA] even U.S. re- (1981) (holding that OSHA is not quality 185 standards promulgating air factors in analysis in cost-benefit quired to conduct a CAA].”). [under 6(b)(5) under section a standard promulgating Act Safety Health Occupational Sunstein, Interpreting Statutes R. 3. See Cass language specific "Congress uses because 405, State, 103 Harv. Regulatory L.Rev. agency engage in intending an when (1989) Textile (criticizing American 492-93 Valley v. analysis”); Tenn. Auth. cost-benefit 490, Institute, 101 U.S. 452 2279, 153, 184, Hill, 57 437 U.S. Manufacturers (1981) 2478, “con- ("The 185 (1978) Con- 69 L.Ed.2d plain intent of S.Ct. 117 L.Ed.2d Endangered Species enacting Occupa- gress irrationality of the [the tributing the trend towards was to halt reverse Act] "refusing Safety Health Act” tional cost.”); extinction, Un- whatever species would); Cass as the author statute” read the 257-58, EPA, 427 U.S. Co. v. ion Elec. Principles, Sunstein, R. Default Cost-Benefit (1976) (holding L.Ed.2d S.Ct. (same); (2001) 99 Mich. L.Rev. claims econom- not consider Jr., Pierce, Appropriate Role J. Richard require- evaluating a state infeasibility in ic Regulation, 54 Admin. Environmental Costs in quality stan- air primary ambient ment (2002) (criticizing Whit- deadline); Lead L.Rev. by a certain be met dards can- "anti-cost relying on an man Court EPA, 647 F.2d Ass’n Indus. on”). Cir.1980) ("We (D.C. unable discern are only public strained to consider health haz- interpretation, including in 2005. See 2005 *19 ards, harms, Decision, not environmental or other in Delisting 16,002. Fed.Reg. 70 at making “appropriate necessary” its and In the any text, absence of limiting and view, considering determination. their context (including 112(n)(l)(A) 112(n)(l)(B)) § § unambiguously CAA, purpose forecloses and of the EPA reasonably the consideration of non-health effects concluded that be- it could cause the consider requires statute EPA environmental making to make harms in “appropriate “appropriate its its necessary” necessary” and and determina- determina- tion. tion after The court need not considering the decide results of the whether environmental Utility Study, effects which is alone would allow exclusively focused EPA regulate on EGUs under identifying “hazards to be- public health” cause EPA did not caused base its EGU HAP determination emissions. See SIL solely on environmental Br. 44. effects. As we Petitioners insist that in 2005 explain, II.B.5, Part EPA’s decision followed health-only approach. infra to list EGUs can be sustained on the basis EPA reasoned that “nothing the stat- of its findings regarding health hazards ute suggests that the ignore [EPA] should posed by HAP EGU emissions. adverse environmental effects determin- ing whether regulate EGUs under sec- 4. impacts Cumulative HAP NPRM, tion 112.” 24,988; 76 Fed.Reg. at emissions. On grounds that Rule, 112(n)(l)(A) see Final 77 Fed.Reg. at 9325. To directs EPA study haz the contrary, EPA reasonably concluded that ards pur- anticipated to occur “as a pose of the CAA emissions, and the result of’ HAP express statute’s EGU petitioners instruction to assess environmental contend that EPA required effects to base its in the Mercury Study suggest “appropriate necessary” “it is rea- determination sonable to consider on public environmental health effects hazards that occur exclu in evaluating sively posed by Thus, hazards HAP due to EGU HAPs. they con NPRM, tend, emitted from EGUs.” 76 Fed.Reg. erred considering EGU HAP 24,988; Rule, see Final Fed.Reg. emissions that merely “contribute to” or explained in response to exacerbate otherwise-occurring com- health haz ments that restricting it ards. from Petitioners considering point out that EPA’s environmental interpretation harms “incorrectly would conflicts with approach the requirements 112(n)(l)(A) conflate[ ] Utility for the when it read to au Study with requirement regulation thorize only upon a showing EGUs under CAA section 112 if EPA de- EGU emissions alone would cause termines it appropriate is harm. necessary to Rule,
do so.” Final Fed.Reg. at 9325. EPA explained that it could reasonably EPA did not consider the impacts err in cumulative considering of HAP environ- mental emissions because alongside effects health effects for purposes of the “appropriate and neces- focusing on HAP emissions from EGUs sary” Although determination. petition- alone making when appropriate find- ers’ interpretation 112(n)(l)(A) § ing ignores is the manner in which public plausible, the statute could also be read to health and the environment are affected treat consideration of Utility Study air pollution. An individual that suf- a mere precedent condition to the “appro- fers adverse health effects as the result priate and necessary” determination. HAP combined emissions from EPA has consistently adopted this latter harmed, EGUs and other sources is irre- They maintain standards. MACT from emissions HAP spective pose not HAPs that do of EGU regulation the harm. cause would EGUs alone hazards, at a level regulation health 24,988; see Fed.Reg. NPRM, such haz- to eliminate higher than needed EPA acknowl- at 9325. “appropriate ards, regulation ap- its 2005 departing edged was contend Petitioners necessary.” 24,989, NPRM, Fed.Reg. at see proach, “regulate 112(n)(l)(A)’s instruction grounds departure justified but under this generating units steam electric “flawed” been had approach added) than (emphasis section” *20 —rather that “EPA to the extent “non-scientific” 112(d) congressional § ”—evinces “under that U.S. incorrectly determined [had] regulat- be HAPs should intent EGU con- did not [mercury] emissions EGU Br. SIL other sources. differently than ed health,” id. at public to hazard stitute 36. Rule, Fed.Reg. 77 Final 25,019; of. dis- and considered expressly EPA 9322-23. interpreta- proposed petitioners’ missed Rule is Final in the interpretation EPA’s “un- phrase EPA concluded tion. Section to deference. entitled to refers presumptively this section” der occur- 112(n)(l)(A)’s to hazards reference regula- to section regulation under HAP emissions of’ EGU result ring “as a 112(n)(l)(A). subparagraph under solely by tion caused hazards connote could 9330; Rule, Fed.Reg. at Final See emissions, also connote could but it EGU Thus, 24,993. NPRM, Fed.Reg. at by EGU emissions. hazards exacerbated suggests language “EGUs plain statutory stat- to this approach EPA’s commonsense manner as in the same regulated be should within was well ambiguity utory re- statute which the categories for other discretion, adequately and itsof bounds Rule, 77 Fed. Final regulation.” quires 2005. Petition- reversal from explained explained: EPA Reg. at 9330. consid- erred in that EPA ers’ contention by non- a mecha- emitted 112 establishes of HAPs section ering the effects CAA stationary unavailing. regulate and is to therefore nism list EGU sources Mercury Regulation in the event, emissions. EPA concluded of HAP any sources re- generally other no if were section “even there CAA Study that under exposures CAA section listing under [mercury] exposure, quires sources to under 112(e)[] CAA regulation attributable deposition [and] associated suscep- 112(d)[.] ... determination the most A place would section U.S. EGUs” once the methylmercury listed be EGUs should populations above tible necessary NPRM, and appropriate prerequisite dose. reference find, wholly consistent with Thus, petitioners is 25,010. finding is made did 112(n)(l)(A), and do, that EGU required language of section contend it haz- under regulated cause health must be sources alone would listed emissions 112(d). CAA section ards. Id.; at 9326. also id. see 112(d). § under Regulation
5.
regulating
properly
EPA acted
“ap
if
is
even
contend
Petitioners
112(d).
Section
§
under
EGU EGUs
regulate
necessary” to
propriate
112(n)(l)(A)
the Administrator
directs
be
emissions,
should
regulation
such
HAP
units
generating
steam
112(n)(l)(A)
“regulate electric
de
§
under
effected
section, if
Administrator
this
un
under
necessary
appropriate
gree
—not
appropriate
regulation
such
112(d)
finds
imposition
through the
§
der
necessary.”
112(n)(l)(A),
§
CAA
42 as other categories for which the statute
7412(n)(l)(A).
§
U.S.C.
EPA reasonably
requires regulation.”
77 Fed.
interprets the phrase “under this section”
Reg.
then
reasoned
to refer to
entirety
of section 112.
Lime,
court’s decision in National
See Desert
Against
Citizens
Pollution
F.3d at
“requires
[EPA]
(D.C.Cir.2012).
699 F.3d
all
major
HAP from
sources of HAP emis-
Under section
statutory
frame-
sions once a
category
source
added
work for regulating HAP
appears
sources
the list of categories under CAA section
112(c),
listing,
which covers
112(c).”
added).
(emphasis
In other
112(d),
which covers standard-setting. words, EPA concluded that if EGUs are to
112(c),
112(d),
CAA
42 U.S.C.
regulated
be
in the same manner as other
7412(d).
7412(c),
previ-
This court has
categories,
source
then all HAPs emitted
ously noted
that “where
wished by
subject
EGUs should
regulation.
to exempt
specific
require-
EGUs
See id.
ments of section
it said
explicitly.”
so
EPA did not
err
concluding that it
Jersey,
New
ing EPA’s data practices. collection See compromises the Final Rule because the 77 Fed.Reg. at 9313-16.4 EGU emission standards should have been
Petitioners’ based objections exclusively on remaining data major center on change 112(d) source EGUs. position EPA’s But does not between re quire regulate and 2012. Although petitioners EGUs “major are sources”; correct sources” and that EPA “area weighed pieces certain it merely that, says evidence differently times, major lists different and area if sources, it agency must then reasonably adequately them ex- ac cording plained to the separate provisions. its basis for changing position See § 112(d)(1), CAA mercury 7412(d)(1). U.S.C. posed emissions sufficient risk to public constitute a health EPA’s decision not to draw such a dis- 40; hazard. NPRM, Br. 76 Fed. tinction here is a reasonable one. As EPA Reg. 25,019-20. EPA identified and emphasizes, distinguishing major between *23 analyzed what it viewed as technical flaws source and area source EGUs runs counter in the analysis scientific supporting the separate the statutory provisions gov- Decision, 2005 Delisting including a failure erning EGUs. While other sources are to evaluate the cumulative health hazard major classified as or area sources depend- from EGU emissions when with combined ing on the quantity of they emit, emissions other sources of mercury, NPRM, 76 Fed. § 112 specifically defines EGUs in terms Reg. 25,019, and health hazards from of their output. electrical Compare CAA methylmercury exposure above the § refer- 112(a)(8), § with CAA 112(a)(l)-(2). dose, 25,020. ence id. at Those explana- Consistent with ordinary rules statutory 4. For the explained EPA, reasons in UARG arguments v. had properly presented been 744 (D.C.Cir.2014), F.3d 741 we do ad- not agency, petitioners would have forfeited them petitioners’ dress claims that SAB's final re- by raising only them cursory in a footnote port on Mercury was TSD submitted too opening their brief before this court. See late public to allow comment and EPA that Columbia, Hutchins v. Dist. 188 F.3d unreasonably refused request SAB's to review (D.C.Cir.1999) (en banc) ("We n. 3 need the final TSD. did not Petitioners raise those cursory not consider arguments made comments, issues in and reconsideration is footnote”). a pending still before agency. Even if these Consequently, peti- mercury emissions. relied reasonably construction, EPA mercury MACT stan- insist, 112(a)(8) rath tioners §in definition specific more by the achieved the results reflects applicable dard definitions general than the er EGUs, not the and best” of the Gat “best RadLAX See sources. all other EGUs, as all Bank, 12% of best results Amalgamated Hotel, LLC v. eway 2070-72, 182 — statute. required by U.S.—, EPA (2012). Requiring L.Ed.2d ir- or biased of a assertions Petitioners’ area sources major or classify EGUs not are process collection data rational redundancy in create also would the record. a review supported Section listing criteria. source-category latitude deter- has wide typically “EPA list EPA to requires 112(c)(3) the CAA data-gathering neces- extent of mining EPA if deter regulation for sources area Club Sierra problem.” a sary to solve regulation.” they “warrant[] that mines (D.C.Cir.1999). 658, 662 F.3d EPA 7412(c)(3). § 112(c)(3), 42 U.S.C. CAA a three- that Here, EPA determined unnecessary as arguably finding is That for de- appropriate was approach pronged requirement given EGUs applied to standard. mercury MACT veloping the finding 112(n)(l)(A) EPA make all of their EGUs for First, all asked EPA “appropriate EGUs is of all regulation 2005-10; data from it received from data necessary.” and Request Collection Information units. declining 9; err in did not Part A EPA also (“ICR”) Statement Supporting re- authority to discretionary Analysis exercise Floor MACT generally see available “generally stringent Second, requested less quire EPA Spreadsheets. standards, GACT, technology,” randomly control select- data from received and Id. standards. MACT than Part rather Statement Supporting EGUs. ICR ed 7412(d)(5). 112(d)(5),42 U.S.C. and requested Finally, EPA 2, 7-8. B at reasonably Rule, expressly Final best-per- 170 of received data separate GACT setting determined non-mercury emissions. for forming units un- was source EGUs area standards group third thought that initially Fed.Reg. at necessary. See mer- best-performing also be would (“[Sjimilar emissions HAP 9404, 9438 emissions, it discovered but cury ma- on both found technologies are control the data. examining after the case “there such sources” jor area v.l, Comments, Dec. Responses area between difference no essential (“RTC”). 573-76 re- EGUs major source source ICR, covering of its results on the Based HAP.”). spect to emissions “the EGUs, chose of 388 total reasonably de- reasons, EPA For these achieved limitation average emission *24 mandating as § 112 interpret clined ex- of all percent” performing the best major sources as of EGUs classification emis- ha[d] [it] which “for isting sources sources. area by CAA information,” authorized as sions NPRM, 112(d)(3)(A). See § Peti MACT Mercury 3. floor. EPA acknowl- as Although, 25,022-23. for EPA’s standards challenge tioners next capricious arbitrary and edges, would coal-fired existing from mercury emissions based floor a MACT to set for in calcu that maintain Petitioners EGUs. indi- data, facts intentionally skewed units, those for floor MACT lating the Nor here. do so not EPA did that only cate data emissions EPA collected data EPA’s that suggest the record does best-performing that were those EGUs collection efforts resulted in Reg. unintentional at 9405-06. Petitioners dispute noted, bias. previously As EPA collected EPA’s weighing evidence, of the peti- but data from a range wide of EGUs because tioners offer no compelling basis for sec- agency that concluded it could not ond-guessing analysis. EPA’s identify units representing the best-per- Petitioners also suggest that regulation forming percent of mercury emitters. gas acid EGU emissions to address That conclusion is borne out by the data in ecosystem acidification conflicts record, with Con which showed that some of the gress’s decision in the 1990 best-performing CAA particulate units for amend mat- ter ments to among control were address such perform- worst acidification in Title ing mercury units for IV control. gener- See CAA. SIL Br. Reply 5. But ally Analysis MACT Floor Spreadsheets. petitioners failed to raise argument that Similarly, many of the mercury per- best before agency, and did not raise it in (32 of formers the best performing 126 this court until their reply brief. We units) not were drawn from pool therefore deem the argument forfeited. units targeted that EPA perform- best See Bd. Regents Washington of Univ. of particulate ers for matter. See RTC v. 1 EPA, (D.C.Cir.1996). 86 F.3d at 575. short, EPA’s data-collection process reasonable, was even may if it not 5. UARG delisting petition. have resulted in a perfect dataset. Utility Air (UARG) Regulatory Group gas Acid HAP. EPA did not conclu- filed a petition with EPA seeking to re sively determine that emissions of acid move coal-fired EGUs from the list of gases such as hydrogen chloride from regulated sources under 112. EPA de EGUs pose health hazard. See NPRM, petition. nied the Petitioners argue now (“our 76 Fed.Reg. at 25,016 case studies that that denial arbitrary and capri did identify significant chronic non- cious for the same reasons they assert that cancer risks from emissions”). acid gas the agency’s determination “ap that is say Petitioners given conclusion, propriate and necessary” to regulate EPA should have established a less strin- EGUs was incorrect. Assuming, without gent, health-based emission standard for deciding, EPA can delist a subset gases 112(d)(4). acid under provi- That of the EGU source category, reject we sion states: respect “With pollutants petitioners’ argument on point. this As which a health threshold has been estab- explained the Final UARG’s lished, the Administrator may consider petition delisting did not demonstrate that such level, threshold with an ample margin EPA could make either of predi the two of safety, when establishing emission stan- cate findings required for delisting under dards under subsection.” CAA 112(c)(9)(B): (1) that no source § 112(d)(4), 42 7412(d)(4). U.S.C. Sec- category emits HAP “in quantities 112(d)(4) which tion clear, however, makes may cause a risk lifetime greater cancer EPA’s authority to set alternate standards than one one million (“the discretionary. individual See id. Administra- population tor who is most consider exposed” such level”) threshold (2) added). (emphasis Here, emissions from no source in the concluded that it lacked enough category “exceed a level evidence to deter- which adequate *25 mine whether an protect public alternative health standard with an ample protect would health “with an ample margin mar- safety.” § of 112(c)(9)(B), CAA 42 gin of safety.” Rule, See Final 77 § Fed. 7412(c)(9)(B); U.S.C. see also Final
1249 petitioners’ arguments of (discussing Many industry Rule, Fed.Reg. at 9364-65 77 EGUs, analysis). fluidized or circulating in UARG’s risk concern bed technical flaws here, As differ from CFBs. relevant CFBs emissions data. 6. Chromium in that pulverized conventional coal units validity of question the Finally, petitioners materials, inject air CFBs and additional risks from study regarding EPA’s case limestone, such as into combustion As relevant non-mercury emissions. EGU lower-temperature zone in to achieve order 16 here, study that at of found temperature, At combustion. lower facilities, posed HAP a of tested emissions degree, a thus fuel breaks down to lesser in a risk of more than one lifetime cancer enabling to control emissions with- CFBs individuals. exposed million to the most using out add-on controls. Peti Fed.Reg. at 9319. See Final that EPA’s cancer-risk tioners contend Industry argue petitioners these finding product was the contaminated required EPA to create design differences re samples, that EPA has emissions separately regulated subcategory a used. the emissions data it fused to correct recog- that EPA They emphasize CFBs. they rely on argument, making in a subcategory for a CFB nized need independent “subsequent resam- their own the “Boil- rulemaking proceeding, different facilities that EPA examined pling” er Rule. MACT” conducting inhalation risk assess its UARG, 58; Br. n. Petition ment. SIL argu- Industry petitioners’ CFB-related Rule at 6-7 for Reconsideration MATS unavailing. Contrary to indus- ments are 16, 2012), (Apr. EPAHQ-OAR-2009-0234- assertions, try nothing in petitioners’ (J.A. 2493-94). “requires” Air Act EPA to create a Clean Rather, subcategory. CFB statute capri- arbitrarily EPA not act did in deter- gives EPA substantial discretion ciously in on the chromium emis- relying subcategorization ap- mining whether object. petitioners to which As sions data 112(d)(1), § 42 U.S.C. propriate. See CAA responses com- explained EPA (EPA 7412(d)(1) “may distinguish ments, repre- from the data came source classes, types, and sizes of among v.l at 187. sentatives themselves. RTC sources”) added); (emphasis see also Nat’l repre- reasonably believed that these Agencies Ass’n Clean Water sentatives—given “concern[] their about (D.C.Cir.2013) F.3d accuracy”—would “all data be- data review (“EPA’s authority under subcategorization accuracy their and submit- certifying fore determination, expert 112 involves an them to EPA.” Id. EPA did not ting heavy challenger burden on placing relying err in on this certified data. We articulated overcome to EPA’s deference petitioners’ cannot consider the data the facts connection between rational con- resampling, which was independent made.”) (internal quo- found and the choice the Final Rule issued and was ducted after omitted). EPA’s decision not tation marks part administrative record. See subcategory 307(d)(7)(A), to create a CFB U.S.C. CAA 7607(d)(7)(A). well-supported Rule is reasonable and Among things, other record. B. among the best and were noted CFBs pollutants, performers various worst utilities and group A electric pro- indicating have emissions that CFBs industry separate peti have filed a groups units de- industry. to other coal-fired files similar raising specific tion issues *26 spite their operational differences. See Fi- units were among the performers best Rule, nal 77 Fed.Reg. at 9397. hydrogen for chloride. See RTC v.l at 587. EPA suggested also similarly alternative supports record EPA’s de- compliance termination that methods that it says the 0.002 would hy- lb/MMBtu permit drogen coal-refuse-fired chloride for CFBs limit CFBs is continue achiev- participating in above, able. As noted some CFB reclamation units efforts. See were among top 77 Fed.Reg. performers for each of 9412. Re- gardless, regulated pollutants, nothing in including the CAA hydro- obligates gen EPA to chloride. See set id. The standards in record a way thus that al- ways demonstrates that at allows least ash, some CFB re-use units of fuel even are in fact doing able to if might achieve so be a hydrogen more desirable chloride any event, limit. outcome for some fact that EGU operators.
the Final Rule not be cost effective for all CFBs does not necessarily mean C. EPA erred in declining to create a CFB In contrast to its decision CFBs, subcategory or in setting emission stan- EPA did create a subeategory for lignite- applicable dards to those units. fired (Lignite EGUs. coal is also referred EPA’s decision to subcategorize CFBs to as “low rank” coal due to its low heat in the Boiler MACT Rule not content.) Industry petitioners argue that contrary. There, EPA concluded that the emission standard for lignite sub- CFBs presented relevant differences with category is based on an calcu- improperly respect to carbon monoxide—not mercury, lated minimum stringency level, or MACT acid gases, (the particulates pollutants floor. Industry petitioners also contend at issue in this rulemaking). See National that the emission standard by set EPA is Emission Standards Hazardous Air for not achievable. We consider argu- these Pollutants Major Industrial, Sources: ments in turn. Commercial, and Institutional Boilers Heaters, Process 76 Fed.Reg. 15,608, 1. MACT Industry peti floor. 15,617-18 (Mar. 21, 2011). tioners insist that EPA incorrectly calcu lated the MACT floor lignite units, Industry petitioners argue further rendering that standard minimum, arbitrary and ca should sepa- have set pricious. They rate assert acid gas EPA used standards for coal-refuse- “cherry picked” data from fired CFBs. the top Those 6% of units burn waste coal units, instead of the top from other 12% as coal-mining required operations and use 112(d)(3)(A). §by Finally, resulting industry peti ashes in mine reclamation tioners projects. argue that EPA did Industry petitioners properly maintain account for variability these in lignite fuel-ash reuse coal. efforts would be imperiled by the stringency of the gas acid Industry petitioners’ data-bias argument standards in the Final Rule. is similar to argument made We conclude that State, EPA reasonably Industry de- & Labor petitioners re- cided that separate standards for garding coal-re- the mercury floor, MACT supra fuse-fired CFBs were not And, warranted. Part III.A.3. as with that argument, Industry petitioners’ petitioners’ assertion that assertions regarding the lignite hydrogen chloride standards are unat- MACT floor find no support in the record. tainable for coal-refuse-fired CFBs is un- EPA has reasonable, offered a non-biased dermined the fact that some of those explanation of its data-eollection analy-
1251 to consider failed EPA that argue tioners at Memo Floor MACT See process. sis tech- control applicable of limitations the at 559-60. v.l 10; RTC contend, result, petitioners aAs nologies. regard objections Industry petitioners’ lig- for standard beyond-the-floor EPA’s likewise coal variability lignite of the ing because not achievable is EGUs nite-fired to variability due for accounted EPA fail. unrealistically high mandates standard of coal compositions chemical differing mercury reduction. of levels analy Limit Prediction Upper its applying challenge to the 25,041. petitioners’ reject NPRM, We 76 See sis. concluded EPA that standard. challenge not beyond-the-floor do petitioners Industry that process rulemaking passing suggest during They do itself. analysis if is achievable flawed, Indus units see lignite for are standard results EPA’s that particular of a use explanation their no increase offer but Br. sources try Pet’rs’ injec- carbon cursory treat activated technology, Such is that so. control why toas at 1- Memo challenge Beyond-the-Floor their place to See inadequate tion. isment carbon EPA, increased before to analysis According variability 4. EPA’s to to by up merely to emissions reduce enough can not injection “it is court, because nec- reductions most in the excess 90%, argument well possible a mention levels. beyond-the-floor coun to do court essary reach leaving the way, skeletal on this dispute Ultimately, the ar for work, the ossature at 1-2. create sel’s disagreement bones.” a factual its on flesh issue amounts put gument, the ef- over Corp., petitioners EPA Guar. between Pension v. Davis Benefit (internal injection. carbon (D.C.Cir.2013) activated of 1161, 1166-67 fectiveness F.3d omitted). in- no data contains record alterations Because marks quotation effi- position could not EPA’s that acknowledged consistent EPA While we de- injection, variability, carbon activated operational cacy of all account “is determination variability analysis agency’s fer concluded lig- standard addressing the emission beyond-the-floor method appropriate an be met must is achievable. EGUs standards nite-fired these concern EPA’s at 458. v.1 RTC all times.” D. our to withstand is sufficient explanation this kind review “extremely deferential” sub are companies utility Public v. Reil York New judgment. technical contracting re state-law certain ject (D.C.Cir.1992). 1147, 1152 969 F.2d ly, process lengthen quirements That add controls. installing upgraded EPA limit. Beyond-the-floor argue, re industry petitioners time, restrictive, ed “be a more to set permitted blanket, one-year a grant quires if the standard emission yond-the-floor” deadline compliance extension standard such determines agency disagree. We companies. power public costs, energy re considering “achievable” amounts argument again, petitioners’ Once control technol applicable quirements, Air Act the Clean that decision to a claim 112(d)(2), 42 U.S.C. CAA ogies. instead should discretion to EPA’s “achievable,” leaves a stan 7412(d)(2). To be 112(f)(3)(B), CAA mandatory. See be under being met capable “must dard “may issue” (EPA 7412(i)(3)(B) U.S.C. reason can which conditions adverse most circumstances). certain under extension an Lime Nat'l to recur.” expected ably be a blan why such length explained n. F.2d v. Ass’n Fi- inappropriate. extension ket industry peti- case, this (D.C.Cir.1980). nal 77 Fed.Reg. at 9407, 9409-11. e.g., Power Corp. FERC, Clifton Most importantly, industry petitioners did F.3d 112 (D.C.Cir.2002), the text and likely show—and could not legislative history show—that of the Clean Air Act an extension is necessary for the make clear installa- approach usual is inappli- *28 tion of controls every cable, at public power see EPA, com- UARG v. 12-1166, Nos. pany. 12-1366, On contrary, 12-1420, EPA’s data 744 indi- F.3d 745-46, cated that “most units 2014 (D.C.Cir. WL will be at able to *3 fully Mar. comply” 2014); within § the three-year 307(b)(1), CAA period es- U.S.C. 7607(b)(1); tablished Rule, EPA. Final S. REP. 101-228, NO. (1989). at 9410. EPA’s decision not to issue a
blanket extension therefore was not arbi- 1. Averaging. Under the Final trary or capricious.5 Rule, existing contiguous, commonly-con trolled EGUs the same subcategory can
IV. demonstrate compliance by averaging their emissions as an alternative to meet We turn to the challenges by Environ- ing certain requirements on an individual mental petitioners and Julander Energy basis. Final 77 Fed.Reg. Company. (codified 9473-76 at 40 63.10009). C.F.R. Averaging permissible only between the A. same types pollutants, individual EGUs petitioners Environmental challenge the part are of the same source, affected provisions of the Final Rule that allow subject EGUs to same emission stan compliance with emission standards to dard, be (not and new) existing EGUs. Id. at (1) demonstrated through emissions aver- 9385. Each facility intending to use emis (2) aging and options for non-mercury sions averaging must develop an emissions metal HAP emissions monitoring. averaging plan Chesa- “(1) identifying [a]ll units in peake Climate Network, Action the averaging (2) Conserva- group; the control tech tion Foundation, Law nology installed; (3) Environmental In- process parame tegrity Project, and ter Sierra object Club will monitored; (4) be to the specific averaging as unlawful; control Chesapeake technology pollution Cli- or prevention mate Action (5) Network measure used; to be plan Environmental test Integrity Project object measurement of the HAP monitoring being aver options aged; (6) as failing to provide operating parameters reasonable to assurance of compliance. monitored.” Id. at They 9385-86. presented objections (save their one) during the com- petitioners Environmental contend the ment period and EPA has responded to averaging alternative is unlawful because them. Although the challenges to emis- it relaxes the stringency of the MACT sions averaging are also pending before floor standards. With one exception, EPA EPA in petition for reconsideration, and set the MACT floor standards based on a usually would be incurably premature, see, thirty-boiler operating day averaging peri- 5. To the extent petitioners object petition to UARG, reconsideration. alleged EPA’s failure respond to comments F.3d at 746. We also do not address industry on this issue made public power compa- petitioners' arguments concerning the stan- nies on ground that this failure violates petroleum-coke-fired dards for liq- EGUs and CAA 307(d)(6)(B), U.S.C. uid oil-fired non-continental EGUs because § 7607(d)(6)(B), we do not objec- address that arguments those were likewise first raised in tion because it was first raised in a pending a pending petition for reconsideration. reflect standard MACT Allowing multi- 9385, 9479-80. od. Id. reduc- emissions achievable maximum data their emissions average ple EGUs therefore, fully effectuated. is, maintain, tions extends, petitioners effectively sixty averaging period Viewing averaging the standards’ Fed.Reg. at 9385. (for three days (for units), ninety flexible, two and less days more equivalent, “an view, longer their units), more. requiring units costly alternative” larg- longer permits period individually, EPA averaging compliance demonstrate measure- high spikes part because averaging pollution er permitting explained more hours over averaged encouraging can be ments “general policy of its operations. normal, lower-pollution approaches compliance flexible use of monitored properly they where can be 7412(d)(3), 112(d)(3), 42 U.S.C. Section *29 enforced.” for exist- standards emission that provides the stringent” concede petitioners less not be “shall Environmental sources ing an result in limitation will not emission alternative average averaging “the than be- emissions per- total in a source’s performing best increase by the achieved the appli- under permitted The subsection the level yond such sources. cent” Br. pro- standard, Pet’rs’ Envtl. (d)(2) requirement see “beyond-the-floor” cable al- averaging new or could theoretically for standards emission that while vides the to exceed require maxi- unit’s emissions individual “shall low an existing sources Rule that standard, Final emissions under the of reduction the degree mum other, bet- by to subject this offset must be pollutants air exceedance the hazardous ... de- com- to demonstrate units ter-performing that Administrator ... the section 112(d)(2), EPA’s challenged § They not CAA have pliance. is achievable.” termines ambiguous term the 7412(d)(2). interpretation 42 U.S.C. referring defined “source,” EPA which 112(d) to interpreted permissibly or oil-fired EGUs of coal- collection to “the provided averaging as emissions allow area contiguous single a ... within Chevron, 467 U.S. Rule. See Final in the Rule, 77 control,” Final common under neither That section S.Ct. single a rather than emissions nor disallows allows expressly 112(d)(3), 42 U.S.C. Because EGU. In the units. multiple among averaging 7412(d)(3), prescribe requires EPA Rule, EPA stated: “sources,” not limitations emissions units is per- affected Averaging across a establish units, permissibly EPA could demonstrated if it can be mitted averaging within that allows standard any particular quantity the total that Chevron, 467 U.S. single source. Cf. that by por- emitted may that be HAP Although this S.Ct. 2778. major source that a contiguous tion the emis- units to exceed individual allow in the standards same subject re- does not limitation, statute the sions under greater be will Rule] [Final unit on a emissions quire than could mechanism averaging level. in the EGU affected individual be if each observed, Environmental has As separately with complied subcategory appears to objection main petitioners’ Under standard. applicable not include does Final Rule averaging outcome test, practical rates whereby emission factor” “discount with compliance equivalent averaging an using for sources are reduced discrete by each floor limits MACT for exam- point, Petitioners alternative. requirement EGU, statutory and the pie, discount factor included in the floor calculation is designed to “assess var- rule, Hazardous Organic NESHAP EnvtL iability of performers.” best NPRM, 9-10, Pet’rs’ Br. in which EPA 25,041. determined 76 Fed.Reg. at To peti- the extent carry “to out the mandate of section point tioners to EPA’s statement in re- 112(d)(2), portion some of these cost comments, sav- sponding to they ignore its con- ings averaging] [from should be shared text. EPA stated it “disagrees with the environment requiring sources suggestion variability another using averaging to achieve more component emission need be considered for those they reductions than would otherwise.”6 EGU operators owners or who choose to engage in emissions averaging; the cur- To the petitioners’ extent objection is rent analyses UPL developed [sic] that EPA explain failed to why it did not take factors such as those mentioned factor, EPA, include a fact, discount the commenter into account.” RTC v.2 at offered a reasonable and adequate expla- 363. According to petition- Environmental nation. In the Final EPA explained ers, “the analyses UPL nothing contain “[g]iven the homogeneity of fuels (or that would eliminate mitigate) even within the subcategories, rules along with Averaging Alternative’s additional relax- other criteria, emissions averaging standards,” ation of the and it was there- Agency believes use of a discount factor to *30 fore inappropriate for EPA rely be this for unwarranted Rule, Final rule.” analysis in support of the Final 77 Rule’s Fed.Reg. Further, at 9386. in respond- emissions averaging provisions. comments, ing to EnvtL EPA explained that un- Pet’rs’ Br. 20. But there is nothing like the rule, Hazardous Organic “which indicate this is what EPA did. covers a its broad number of types, unit prod- statement, ucts, EPA was responding to processes,” and indus- subject EGUs to the try arguing comments Final Rule because EPA “differ generally only in the had for accounted fuel individual-unit produce used variabili- electricity,” a differ- ty in the ence, analysis UPL in concluded, setting EPA MACT “accounted for ... floors, it was inappropriate to allow a prohibiting mul- units from differing subca- facility ti-unit to further tegories reduce variability are fuel based—from par- —which by averaging, without ticipating applying a discount emissions averaging.” RTC factor. It is great far too a v.2 at stretch 361-62. to read as noted well its EPA’s response as an agreement admission that EPA that “other safety factors in the relied on its analysis UPL to support rule obviate emis- the need for a discount fac- sions tor,” averaging. id. at 363, including requirement averaging start within years pro- three 2. Monitoring. The Final Rule mulgation of the Final Rule. provides three alternatives to continuous suggestion peti- Environmental emissions monitoring to demonstrate com tioners that EPA improperly relied on pliance its with the non-mercury metal HAP Upper (“UPL”) Prediction Limit analysis (1) standards. They are: use of a continu mitigate the effect of averaging on the ous parametric monitoring system stringency of emission (2) standards (“CPMS”), fares no quarterly performance test better. The UPL analysis in (3) ing, MACT performance and testing once ev- 6. National Emission Standards Subject Hazardous Other Negotiated Processes to the for Air Categories; Pollutants Source Organic Regulation Leales, Equipment for Fed.Reg. 59 for Air Synthetic Hazardous Pollutants 19,402, 19,430 22, 1994). (Apr. Organic Chemical Manufacturing Industry
1255
major
monitoring” for
enhanced
quire[s]
emitting
low
qualifying
for
years
ery three
sources,
presump-
“no
there is
stationary
at
Rule,
Fed.Reg.
EGUs. See
type
any particular
in favor of
C.F.R.
tion
(codified
at
Club,
at
353 F.3d
991.
monitoring.” Sierra
Environmental
63.10000(c)(l)(iii-iv)).
selecting a
discretion
in a
“broad
has
challenged CPMS
first
petitioners
compli-
reconsideration,
that ensures
monitoring regime
petition
pending
“reasonably articu-
ance,”
long as
properly
and as
challenge is
therefore
id.,
decision,”
for its
now.
the basis
for decision
late[s]
court
before
discretion
to the
748 n. 4.
“defer
informed
UARG,
at
court will
F.3d
“analysis
recognizing
Agency,”
compliance
may demonstrate
Any EGU
high
exper-
a
level
requires
of this issue
standards
non-mercury metal
with the
Lime,
Nat’l
F.3d
tise,”
(quoting
id.
Fi-
tests.
performance
quarterly
through
635).
9466.
nal
required
for all
results
unit’s emission
If a
that,
judgment,
explained
appli-
percent of the
less than
are
tests
testing period, cou-
stack
quarterly
“[t]he
peri-
three-year
limit for
cable emission
monitoring of con-
underlying
pled
emitting
as a low
may qualify
od, the EGU
monitoring
the additional
trol devices or
is
non-mercury metal HAPs
EGU for
units,
expected to
liquid
oil-fired
test-
performance
to conduct
required
then
unit’s
to ensure
enough
frequent
long as
so
every
years,
three
only once
ing
processes
devices
emissions control
compliance.
it maintains
manner
same
operate
continue
9471.
stack test.” RTC
during
previous
maintain
petitioners
Environmental
significant
are
“If
there
v.2 at
or once
quarterly
testing conducted
stack
of the unit
operation
changes
reason-
provide
years cannot
every three
to re-
required
fuel,
a retest
then
*31
with a stan-
compliance
of
assurance
able
in com-
the source remains
confirm
rate,
emissions
thirty-day
aas
dard set
circum-
operating
the new
under
pliance
test
that stack
determination
given EPA’s
acknowledged, with
EPA
Id.
stances.”
variable, and that
highly
results are
option,
emitting- EGU
low
respect
to the
op-
compliance
how
explain
has failed
an EGU’s
data
available
“shows
per-
long intervals between
involving
tions
reasoned
variability,” but
potential
of
any
lacking
control
tests
formance
those
EGUs—such
“well-operated
can
between tests
conditions
operating
sta-
emitting EGU]
for [low
qualifying
infor-
sufficiently timely or reliable
provide
less
much
vari-
to have
expected
tus —are
has
compliance.
to assure
mation
requirement
“the
and that
emissions”
able
for its
explanation
a reasonable
provided
fre-
monitoring
original
revert
monitor-
these
that each
determination
test-
subsequent emissions
should
quency
statutory
with the
complies
options
ing
[low
meet
longer
no
EGUs
ing show the
§§ 114 and 504.
of CAA
requirements
keep source
status -will
emitting EGU]
in main-
interested
7661c(b),
operators
or
504(b),
owners
U.S.C.
Section
244. EPA
status.”
taining [that]
moni-
emissions
that “continuous
provides
explanation
a reasonable
provided
has
if alternative
required
not be
toring need
two monitor-
that these
determinations
suffi-
provide
available
are
methods
assurance
sufficient
provide
ing options
timely information
ciently reliable
emission
applicable
compliance with
Although
determining
compliance.”
7414(a)(3), “re-
standards.
114(a)(3), 42 U.S.C.
B.
question
remains whether Julander’s
interest
is “arguably within the zone of
Julander Energy Company, an oil and
interests to be protected
regulated
gas
natural
development, exploration, and
statute.” Match-E-Be-Nash-She-
production company, challenges EPA’s de-
Wish Band
Pottawatomi
Indians v.
cision not to adopt stricter emission
stan-
—
Patchak,
—,
U.S.
2199,
132 S.Ct.
dards
requiring “fuel switching” by
2210,
(2012)
L.Ed.2d
(quoting
EGUs from coal to
gas.
natural
It con-
Ass’n Data Processing,
153,
397 U.S. at
tends that EPA unlawfully relied on a non-
827).
90 S.Ct.
statutory factor (prohibition of construc-
tion of new
EGUs),
coal-fired
failed to
Although the zone-of-interests test “is
required
consider
statutory
factor
not meant
to be especially demanding,”
(§ 112’s requirement
that EPA consider Clarke
Ass’n,
v. Secs.
Indus.
479 U.S.
benefits
collateral
options),
control
and 399,
107 S.Ct.
(1987),
Ethyl Corp. v.
stake regulations fuel KAVANAUGH, Judge, Circuit Ethyl which is a regulatee).” direct Id. at concurring part and dissenting in part: Julander, contrast, seeks stricter you Suppose were the EPA Administra- regulation of EGUs, coal- and oil-fired tor. You have to decide go whether to information that would enable it comply forward with proposed quality air regula- with its own regulatory obligations. tion. Your only statutory direction is to Julander’s suggestion that its interests decide whether it is “appropriate” go properly are characterized as of a those forward with the regulation. Before mak- vendor, not a competitor, is unavailing. It ing decision, what information would rely cannot existing relationship you want know? You would certainly gas-fired with natural EGUs they because want to understand the benefits from the subject are not regulations. Fed. you And surely would ask Reg. at 9309. And claiming has how the regulations much would cost. You standing potential as a vendor to coal- and would no doubt take of those both consid- EGUs, oil-fired in the they event were erations —benefits and costs—into account *34 our case simply, Put test. of interests” just com- That’s decision. making your in test is of interests the zone law applying practice. government sound mon sense to be cleaned and needs of disorder a state case in this surprise aas it comes So near future. up the of any consideration EPA excluded “appro- it is deciding whether costs when I im- statutory term —to key priate” —the EPA’s concern cases consolidated These regulations quality air new significant pose Emission Standards “National my utilities. electric the Nation’s on From Coal- Air Pollutants for Hazardous exclude EPA to for view, unreasonable it is Utility Gen- Steam and Oil-Fired Electric determining costs of consideration (Feb. 16, Units,” Fed.Reg. erating impose sig- “appropriate” it is of 2012). provisions implements The Rule utili- on regulations electric new nificant seq., § Act, 7401 et 42 U.S.C. Air the Clean sure, could conclude EPA ties. To pollu- air of hazardous regarding emissions But the outweigh the costs. benefits the tants. not even EPA did is that here problem costs are And the the costs.
consider recounts, opinion majority As the bil- year a billion huge, about $9.6 —that’s originally provided Air Act Clean calculation. own by EPA’s lion with regu- identify and b— discretion substantial emitting haz- from sources pollution late my explain I opinion, I of this In Part approach That pollutants. air ardous majority disagreement respectful largely time-consuming and to be proved exclu- EPA’s uphold decision to opinion’s unworkable, Congress amended so in 1990 decisionmaking under from its sion cost EPA’s discretion. to cabin much the Act statutory provision. this EPA to required amendments The 1990 I write to opinion, II of In Part of 189 enumer- sources stationary identify applying law case this Court’s address adopt pollutants hazardous air ated the Adminis- test under interests” “zone of of those limiting emissions standards majori- accept IAct. trative Procedure sources. those pollutants petitioner Ju- conclusion ty opinion’s technology-based Those 7412.1 U.S.C. gas natural Corporation Energy lander —a to as commonly referred are standards allegedly un- EPA’s challenging company technology,” control achievable “maximum com- of Julander’s under-regulation lawful MACT, standards. or not companies and oil coal petitor —does setting process for two-step uses a of interests” the “zone fall within by setting begins It standards. MACT zoné of Act, as the least Clean Air “floor,” level, or stringency minimum by some applied been test has interests best- performance based those deci- But of this Court. decisions source particular in a performing units decisions with other inconsistent are sions 7412(d)(3). At that See id. category. are and, importantly, more this Court costs. consider step, first string Su- 40-year awith incompatible floor, it statutory agency sets Once the the “zone applying decisions preme Court 7409(a)-(b). Under that 42 U.S.C. air. See NAAQS pollutants emitted common 1. Six other levels must choose program, EPA regulated under a dif- stationary are sources which, "allow- pollutants of those emissions The Na- Act. Clean Air section ferent requi- safety, are Standards, margin of adequate ing an Quality Ambient Air tional NAAQS, public health.” protect permissible site maximum prescribe the 7409(b)(1). pollutants the ambient those six levels of *35 determines, considering 112(n)(l)(A)— then cost and the The meaning of Section 112(d)(2), other in particularly factors listed Section the term “appropriate” a—is question critical litigation. whether an even more restrictive standard this Indus- 7412(d)(2). try petitioners and EPA dispute is “achievable.” Id. whether re- EPA, when determining whether regula- requirements fers to these stricter as “be- tion of electric utilities under the MACT yond-the-floor” standards. program “appropriate,” is must consider The two-step process outlined in Section the cost to industry and the public from 112(d) I will call the pro- MACT —what regulating electric utilities under that pro- gram applies automatically to most — gram.4 pollutants. sources of hazardous air EPA thinks not. EPA acknowledges that, past, the interpreted
But for
has
category
one
sources—elec-
applied the
“appropriate”
word
tric
this stat-
Congress devised an alterna-
utilities —
ute to provide for
system
tive
consideration of
set
forth in Section
112(n)(l)(A)
15,994,
costs.
Fed.Reg.
16,001
See 70
& n.
of the Act.2 That alternative
(Mar.
2005).
agency
But the
system
has
erects two threshold hurdles before
changed its interpretation.
position
EPA’s
may regulate electric utilities under
now
may
is that EPA
reasonably
First,
exclude
program.
MACT
Congress re-
consideration of costs
in determining
quired
“perform
EPA to
a study of the
is “appropriate”
regulate
hazards to public health reasonably antici-
electric utilities under the MACT program.
pated to occur
aas
result of
by”
emissions
The majority opinion upholds EPA’s inter-
electric
report
utilities and
the results of
pretation.
study
Congress
years
within three
of the enactment of the amendments.
Id.
I respectfully disagree with
majority
7412(n)(l)(A).
Second, Congress provid-
opinion.
true,
It
certainly
is
majori-
as the
ed that after
study
was completed,
ty opinion states, that the
“appropri-
word
EPA could regulate electric utilities under
ambiguous
ate” is
isolation,
and that an
program only
MACT
“if the Adminis-
agency’s
interpretation
reasonable
of an
trator finds such regulation is appropriate
ambiguous statutory
permissible.
term is
and necessary after considering the results
NRDC,
See Chevron U.S.A. Inc. v.
added).3
of the study.”
(emphasis
U.S.
81 L.Ed.2d 694
2. The electric utilities included in this alterna-
this section. The
Administrator shall
system
tive
are coal- and oil-fired electric
utility
electric
generating
steam
units under
utility
generating
steam
units.
section,
this
if the Administrator finds such
regulation
appropriate
necessary
after
full,
3.
the relevant section of the statute
considering the
study required
results of the
reads: "The
perform
Administrator shall
by
subparagraph.”
this
42 U.S.C.
study of
public
the hazards to
health reason-
7412(n)(l)(A).
ably anticipated to occur
aas
result of emis-
sions
utility
generating
electric
steam
units
key
4.The
other
statutory term in Section
pollutants
(b)
listed under subsection
112(n)(l)(A) "necessary”—is
dispute.
not in
imposition
section
require-
after
—
regulation
states that
of electric
ments
utilities
chapter.
of this
The Administrator
necessary
report
"if the
potential
shall
identified or
study
results of this
public
hazards to
years
within
health or the
environment
after November
will
adequately
not be
develop
impo-
Administrator shall
addressed
describe in
requirements
sition of
report
Administrator’s
to Con-
of” the Clean Air
gress
24,976, 24,987
alternative
strategies
control
Act. 76
emis-
(May
sions which
regulation
warrant
under
2011).
account
regulators must often take
(1984).
*36
answer must
agency’s
But the
ment —
regulation’s
stat-
of a
adverse
proposed
of the
of all
construction
permissible
“a
agency’s
Trucking
way,
v. American
put another
effects.” Whitman
ute” —or
be
ambiguity
Associations,
490,
must
457,
interpretation
531 U.S.
S.Ct.
848,
2778.
(2001)
104 S.Ct.
J.,
Id. at
903,
(Breyer,
reasonable.
con
149 L.Ed.2d
APA,
must
Moreover,
agency
an
under the
“every
That is
because
real
curring).
so
exercis-
factors when
the relevant
consider
weigh
to
requires
choice
a decisionmaker
stat-
governing
under the
its discretion
ing
disadvantages, and dis
advantages against
Vehicle
ute.
Motor
(often
Manufacturers
in terms of
advantages
be seen
can
States, Inc. v.
the United
Association
Entergy Corp.
v. Riv
quantifiable) costs.”
Insurance
Mutual Automobile
State Farm
Inc.,
208, 232, 129 S.Ct.
erkeeper,
556 U.S.
29, 42-43,
Co.,
103 S.Ct.
463 U.S.
(2009)
(opinion of
To is so plankton. more fish or That save one com- to be a central commonly understood somehow industry might if the afford even analysis, ordinary regulatory ponent 232-33, billions.” Id. those health, safety, in the context of particularly (internal quotation citation and marks And Con- regulation. environmental omitted). backdrop against the legislated gress oth- Breyer, many In addition Justice it enact- understanding common when on adminis- leading jurists and scholars er as a simply, Put this statute ed recognized have likewise trative law sense, par- common common matter of factor a relevant generally cost has be determining lance, practice, common mix. regulatory Consider in the overall regulate re- “appropriate” it is following: of costs. quires consideration does it take Kagan: “[W]hat Justice administrative Drawing on his extensive look, say, Con- to make us a statute to men- experience, not regulatory law and regulation that the demanded gress has jurist, as a Justice experience tion his attention to any without here occur explained Breyer perhaps has best words, essentially, In other costs? proper consideration to centrality of cost regu- that the has demanded In order “bet- decisionmaking. regulatory fundamentally in a occurred lation has exam- regulatory goals ter to achieve —for Argu- Transcript of Oral silly way.” they save resources so ple, to allocate City v. EME Homer ment environ- produce a cleaner more lives (U.S. Generation, L.P., No. 12-1182 considering decision without costs 2013).5 Pierce, Jr., Dec. way.” some Richard J. (cid:127) Appropriate Role Costs in Environ Professor Sunstein: “Without some Regulation, mental 54 Admin. L.Rev. sense of both costs benefits —both (2002). 1237, 1247 regu- nonmonetized and monetized — lators will making stab Every presidential administration for Sunstein, dark.” Cass R. Cost-Benefit more than three decades has likewise Environment, Analysis and the *37 Ethics analysis made an integral part of costs (2005). 351, 354 the internal regulatory Executive Branch (cid:127) system Professor Sunstein: “A rational process. generally Boutrous, Helen G. regulation magni- looks not at the Regulatory Review the Obama Admin- alone, tude of the risk but assesses the Analysis istration: Ev- Cosh-Benefit for in comparison risk to the costs.” Cass eryone, 243, Admin. L.Rev. 246-48 Sunstein, R. Interpreting Statutes in recently, (2010). Most President 2011, State, Regulatory 103 Habv. L.Rev. Obama issued Executive Order 13,563, 405, (1989). which follows an earlier by Order issued (cid:127) President Clinton and “[A]ny Professor followed Presi- Sunstein: reasonable George dent W. Bush. The Order judgment ordinarily will directs be based on each agency “to some kind of use the best available weighing of costs and benefits, techniques to quantify anticipated present inquiry not on an into benefits and future accurately alone.... If benefits and costs as high the costs would be (Jan. low, possible.” 76 Fed.Reg. and the benefits on what rationale 2011). should ... Under President Obama’s Ex- the EPA refuse even to Order, agencies ecutive may proceed consider appears the former? There to proposed regulations only if good not, be no If the benefits answer. there is justify the costs. Id. agency’s interpretations should be de- clared unreasonable.” R. Cass Sun- clear, Congress To be may weigh itself stein, Principles, Cost-Benefit Default particular the costs of a regulation, kind of 1651,1694 (2001). 99 Mich. L.Rev. or otherwise take costs out equation, (cid:127) Professors Revesz and Livermore: when assigning authority to executive and “For certain governmental kinds of independent agencies regulate to a particu- programs, the use analy- of cost-benefit lar industry or in a particular area. See is requirement sis a of basic rationali- Whitman v. American Trucking Associa- ty.” RichaRD L. Revesz & Michael A. tions, 531 U.S. LIVERMORE,RETAKINGRATIONALITY (2001) (statutory L.Ed.2d 1 provision does (2008). costs). not include consideration of And (cid:127) Professor Pierce: “All individuals and agency even when an has to take costs into naturally account, institutions instinctively may it of course conclude that the consider making any costs in important of proposed regulation benefits outweigh decision.... impossible Moreover, is often [I]t the costs. different agency a regulatory agency heads, Presidents, make a rational may and different as- clear, 5. To be statutory principle I do read succinctly text articulated Justice Ka- at issue in the EME gan argument Homer case as encom at oral reflects the common- costs, passing way at least not in the EPA understanding sense and well-settled that cost argued regardless there. But determining of how that is an essential factor in whether out, particular background case "appropriate” regulate. turns it is $1,500 nearly every Rule costs $1 and costs benefits weigh certain sess pro- environmental benefit overarching of health and on their differently depending says part, it would duced. For philosophies. billion estimate benefits $37 $90 considering just general as a But when says on what it are the indi- dollars based regu- “appropriate” whether matter PM2.5, reducing type rect benefits of that consideration late, well-accepted it is is not itself particulate fine matter and well-established a central of costs is pollutant. air as a hazardous regulated pro- decisionmaking regulatory part of the Fed.Reg. at 9428. See 77 cess. said, sure, be To as I have here. consider costs But EPA did not outweigh that the benefits able to conclude no trivial failure to do so is And EPA’s “ap- determining the costs in compliance The estimated cost matter. utilities un- electric propriate” approximately Final Rule is with EPA’s reiterate, But to program. der the MACT EPA’s own calcu- per year, by billion $9.6 in this Rule. that’s not what has done 2. To Table *38 at lation. Rather, EPA, is according to it irrelevant would in that amount perspective, it put the large how the costs are or whether premi- annual health insurance pay the determining outweigh the costs in It million Americans. of about two ums benefits regulate “appropriate” is to about whether annual salaries of pay the would pro- It utilities under the MACT 200,000 Military. electric members of the U.S. the en- budget gram. annual of cover the would times Park three
tire National
Service
claim that the
response
petitioners’
In
“among the
simply,
Put
the Rule is
over.
conse-
huge
issue here has
real-world
legal
that EPA has ever
expensive
most
rules
majority opinion suggests
quences,
the
JaMes E.
promulgated.”
MoCaethy,
CoN-
that much that
that it
not matter all
R42144,
SERVICE,
RESEARCH
GRESSIONAL
deciding
costs in
EPA refused to consider
Lights
EPA’s
Utility
the
Go
Mact:
Will
“appropriate”
(2012).
Out?
program,
under the MACT
utilities
electric
fig-
cost
EPA calculated the
billion
$9.6
for costs in the
EPA does account
because
Impact Anal-
part
Regulatory
of its
ure
when
program,
the MACT
step
second
Regula-
Rule. That
ysis accompanying the
“beyond-the-floor” standards.
EPA sets
required by
tory Impact Analysis was
I
find that
Maj. Op.
respectfully
at 1240.
Yet
Executive Order.
President Obama’s
all,
herring.
once
a red
After
to be
in this
is that
position
EPA’s official
Court
regu-
appropriate
that it is
determines
Im-
Regulatory
in the
the costs identified
pro-
utilities under MACT
late electric
bearing
“no
on”
Analysis should have
pact
first,
not relevant
gram, costs are
regulation
of whether
the determination
the MACT
“setting
stage
floor”
EPA Br. 55.
appropriate.
floor will be
meeting
And
program.
particularly
expensive,
ledger,
prohibitively
the other side of
On
utilities, regardless
many
electric
Indus-
coal-fired
disputed:
Rule are
benefits of this
go
further
EPA decides
in of whether
focus on the reduction
try petitioners
standard. So
“beyond-the-floor”
a
attribut-
set
pollutant
air
emissions
hazardous
utilities
electric
real world in which
amount to the
regulations,
which
able to
complying
the financial burden
year.
operate,
million dollars each
only
$4
$6
step
floor”
State,
“setting the
9428;
Industry with that
first
are not
costs
program
figures
right,
are
the MACT
Br. 21. If those
& Labor
—where
likely
knock a bunch of
approach depart
considered—will
Not
does EPA’s
scheme,
statutory
the clear
standard
out of
coal-fired electric utilities
business
agency decisionmaking, and the common
require
expenditures by
enormous
understanding
“appropriate”
of the term
other coal and oil-fired electric utilities.
context,
regulatory
effectively
it also
Telling
that costs will be consid-
someone
negates
congressional compromise
that occurs
regulatory step
ered
after
ultimately
statutory
was
embodied in the
they
already
pay
have
had to
an exorbitant
text of the 1990 Act.
the initial
Under
may already
amount and
have
put
been
proposal,
Senate
electric utilities would
especially reassuring.
out of business is not
been have listed as sources under Section
majority opinion’s attempt
to down-
112(c)
automatically
regulat-
therefore
play
rings
the effects of its decision thus
112(d),
pro-
ed under Section
the MACT
bit hollow.
Legislative History
gram. See 3 A
here,
Clean Air Act Amendments
In downplaying the issue
the ma-
(1993).
4119, 4418-28
But the House sub-
jority opinion
says
also
that the result of
sequently modified the Senate bill to make
just
this case is that electric utilities will
regulation of electric utilities under the
be treated like other
In saying
sources.
program dependent
MACT
on the results
that,
majority opinion, my respectful
study
of a
and the Administrator’s subse-
view,
sufficiently
does not
account for the
quent
regulation
determination that
treating
fact that
electric utilities different-
“appropriate”
necessary.
See 2 id. at
ly from standard sources was the intent of
2148-49.
the words of the House bill’s
112(n)(l)(A),
Section
as revealed
*39
legislative sponsor, Congressman Oxley,
statutory
Congress
text.
If
had intended
goal
the
counter-proposal
the
towas
EPA to consider the
regulating
costs of
provide “protection
public
of the
health
only
electric
deciding
utilities
when
wheth-
avoiding
imposition
while
excessive
standards,
adopt beyond-the-floor
er to
residential,
unnecessary
costs on
in-
and not as a threshold decision in deciding dustrial, and commercial consumers of
regulate
whether to
electric utilities under
electricity.”
at 1417 (emphasis
See
id.
with,
program begin
the MACT
to
it would added).
proposal ultimately
The House’s
have
things:
done one of two
It would prevailed with the Conference Committee
automatically regulated
have either
elec-
...
extremely
“because of
high costs
tric
program,
utilities under the MACT
as
that electric utilities will face under other
sources,
provided
did with other
provisions of the new Clean Air Act
regulation
program
under
the MACT
amendments.”
at 1416. That Confer-
three-year
would be automatic if
study
ence Committee view—that EPA should
found that
these sources indeed emitted
avoid imposing unwarranted financial bur-
pollutants.
hazardous air
That Congress
deciding
dens when
to regulate electric
encapsulated
declined to choose either of
utilities —is
in the
options,
those
textual di-
EPA regulate
rective that
electric
and instead directed EPA
utilities
regulate
elec-
under the
program only
“appro-
MACT
if
tric utilities under the
program
MACT
priate.”
“appropriate,”
if
reinforces the con-
Congress
clusion that
intended
majority opinion
says
here
that the
deciding
consider costs in
regu-
whether to
“appropriate”
ambiguous.
term
is
But the
threshold,
late electric utilities at the
and Supreme
legislative
Court often looks to
not simply
beyond-the-floor
at the second
history
help
interpretation
inform
stage
statutes,
of the
program.
MACT
ambiguous
including
otherwise
Whitman,
Chevron,
according
majority opin-
467 U.S.
cases. See
Chevron
here, the
ion,
And
The
utilities under the MACT
significantly
differs
from the
program
Whitman
outweigh
because the benefits
statutory pro-
costs,
statute at issue
here.
that
decision would be reviewed
regulation solely
tied
vision Whitman
arbitrary
under a
capri-
deferential
and
health,”
“public
typically
which is
a critical
cious standard of review. See American
factor on the other side
the balance
FCC,
Relay League,
Radio
Inc. v.
costs,
factor
not a
includes
(D.C.Cir.2008) (separate
F.3d
247-48
Here,
contrast,
key
costs.
statuto-
J.).
opinion Kavanaugh,
But before we
ry
“appropriate”
term is
classic
any
assess the merits of
bal-
cost-benefit
—the
term that nat-
all-encompassing
broad
ancing,
statutory
this
requires
scheme
urally
traditionally
includes consider-
actually
we first ensure that EPA has
con-
factors,
ation of all
relevant
health
Farm,
sidered the costs. See State
safety
on the one hand
benefits
and costs
42-43,
view,
my
U.S.
To sum
tradeoffs,
implicates
important
This case
another
very
involve
and I am
mindful
issue,
EPA,
administrative law
the “zone of in-
assigned
has
not the
courts,
many
to make
terests” test under the Administrative Pro-
discretionary calls
protect
both our
cedure Act.7
country’s
petition-
environment
The Court holds that
case,
productive capacity.
Energy
and its
er Julander
Company
falls outside
decided,
if EPA
had
an exercise of its
the “zone of interests”
Air
the Clean
Act is
judgment,
“appropriate”
it was
designed
protect
and thus cannot chal-
point,
step
step
On
Chevron
I add one
generally
further
one or Chevron
two. See
-
FCC,
-,
City Arlington
comment. When the Government wins a
U.S.
-
-
case,
1863, 1868, 1874,
may prevail
step
Chevron
at Chevron
S.Ct.
L.Ed.2d
(because
(2013).
here,
agency's interpretation
one
my
So it is
view.
statutory
the statute is mandated
lan-
(because
guage)
step
or at Chevron
two
traditionally
7. This Court has
referred to the
agency’s interpretation
ambiguous
of an
stat-
component
"pru
zone of interests test as a
*41
reasonable).
cases,
ute is at least
In those
the
standing.”
Supreme
dential
As the
Court has
step
step
may
practical
one or
two label
have
however,
recently explained,
the test does not
significance,
as it
determine whether the
belong
"prudential”
under the
rubric. Lex
agency
try
adopt
contrary interpre-
International,
could
a
mark
Inc. v. Static Control Com
hand,
Inc.,
-,
tation in the
1377,
future. On the other
when
ponents,
-U.S.
134 S.Ct.
agency
Instead,
the
a
(2014).
loses Chevron case because the
1269 Currency’s regulation plaintiffs’ parties review at the in plaintiffs the behest class.”). unduly lax. competitors Specifically, was challenged Comp brokers securities And importantly purposes, most for our certain exempt
troller’s decision to
bank
Clarke
that competitors
confirmed
were
brokerage
that offered
services
offices
presumptively within the zone of interests
banking. The
from restrictions on branch
under the APA
challenging allegedly
when
by clarifying that
began
analysis
its
Court
lax regulation of other
competitors
although the zone of interests test was
industry,
relevant
absent discernible evi-
“basically
interpreting congressional
one of
contrary congressional
dence of
intent.
intent,”
a con
inquiry
require
did not
See id. at
(“competitors
S.Ct. 750
gressional
plaintiff
intent
to benefit
allege
injury
who
an
implicates the
Clarke,
394, 399-400,
class.
479 U.S. at
policies of the National Bank
very
Act are
Rather,
750.
suits would be
reasonable candidates to seek review of
“congressional
allowed unless a
intent
Comptroller’s
rulings”).
preclude
plaintiffs
review” in suits
“fairly
discernible.” Id. at
As one respected commentator has sum-
Community
Nu
(citing
S.Ct.
Block
Supreme
marized the
Court’s case law: “It
Institute,
trition
467 U.S.
hardly
say
is
a caricature to
that the cur-
(internal
(1984))
2450, L.Ed.2d 270
S.Ct.
rent
law
desiring
is this: Businesses
omitted).
quotation marks
The zone of
complain
government
that the
regulat-
is
guide
interests
test “is a
deciding
ing
competitors
their
with insufficient
whether,
Congress’
in
view of
evident
stringency
invariably
are
and automati-
agency
presumptively
tent make
action
cally held to fall within the zone of inter-
renewable,
particular plaintiff
should be
”
any allegedly
ests of
violated statute....
complain
particular agency
heard to
of a
Interests,
Jonathan R. Siegel, Zone
In
plaintiff
decision.
cases where the
(2004)
added).
(emphasis
Geo. L.J.
subject
regu
not itself the
of the contested
action,
latory
Despite
right
apparent clarity
the test denies a
of Clarke—
if
plaintiffs
review
interests are so and
explicit disapproval
of this Court’s
marginally
related to
inconsistent with zone of interests
cases—some
purposes implicit
in the statute that it
post-Clarke
Court’s
decisions nonetheless
reasonably
cannot
be assumed that Con
competitors
suing
have
still
barred
gress
permit
intended to
the suit. The
they
purportedly
because
are
outside
test
not
especially
meant
demand
example,
For
in Haz
zone
interests.
399, 107
ing.” Id.
S.Ct. 750.
A,
v. EP
ardous Waste Treatment Council
(D.C.Cir.1988)
fall within EPA, 1363, 1370 of Inc. v. 374 F.3d explicit some evidence tional of either absence (D.C.Cir.2004) firms, (allowing some chemical manufac- such to benefit an intent allegedly illegal firms would be of that such turer to sue because to believe reason Congress’s competing of of champions agency under-regulation unusually suitable Waste, 861 Hazardous “If there is reason to believe goals.” ultimate chemicals: statutory in enforce- party’s F.2d at 283. that a interest hinder, advance, rather than the ment will view, language in Hazardous my In that statute, the court can rea- operation of a the square with what is difficult Waste sonably Congress assume that intended to in and earlier said Clarke Supreme Court EPA, suit.”); Ethyl Corp. v. permit cases, Supreme Court In those cases.9 (D.C.Cir.2002) (allow- 1144, 1148 306 F.3d not there does specifically had said of fuel additives to sue ing manufacturer of an intent to benefit need to be evidence allegedly illegal under-regula- because fact, Supreme class. plaintiff zone of tion of automobile manufacturers: allowed that suit should be Court said only challeng- those interests “includes congression- a discernible unless there was by Congress, mentioned but expressly ers by plaintiff suit preclude al intent to potential challengers unmentioned also words, this cases In other Court’s class. thought have useful would in presumption favor seemingly flipped Valley purpose”); statute’s Wabash by competitor plaintiffs to allowing suit Association, FERC, Inc. v. 268 Power allowing suit presumption against a (D.C.Cir.2001) 1105, (allowing 1112 F.3d plaintiffs. competitor power alleg- association to sue because of in our case has The confusion law edly illegal under-regulation merging years following Hazardous grown in the case, utility companies: “In this as a com- competitors allow Sometimes we Waste. foul, crying pru- satisfies petitor Wabash sue, “take opining, example, we requirements.”); Mova standing dential principle like Clarke “the from” cases Shalala, Corp. v. 140 F.3d Pharmaceutical competitive has a interest plaintiff who (D.C.Cir.1998) (allowing drug industry cer confining regulated within allegedly manufacturer to sue because imposed limitations congressionally tain under-regulation of other illegal agency prevent alleged loosening sue “Upjohn’s manufacturer: interest drug National of those restrictions.” First is, by limiting competition product for its Bank & Trust Co. v. National Credit Un nature, very linked with the statute’s Administration, 1272, 1277 988 F.2d ion goal limiting competition ge- between see, (D.C.Cir.1993); e.g., Sherley v. Sebeli manufacturers.”) (internal neric citation (D.C.Cir.2010) (allow us, F.3d omitted); marks see also quotation allegedly sue ing doctors to because Smith, Amgen, Inc. v. 357 F.3d under-regulation of other illegal agency (D.C.Cir.2004) (“Parties motivated plausibly the Act can doctors: “Because purely routinely commercial interests sat- involving” limit interpreted to research isfy the zone of interests test under this cells, “the Doctors’ inter embryonic stem precedents.”). court’s funding the NIH from preventing est times, Waste, But other as in Hazardous research is not inconsistent with the such competi- say exactly opposite, is we purposes of the Amendment.... [T]hat Thomas, (D.C.Cir. Judge cil v. 885 F.2d 9. Chief Wald stated as much C.J., 1989) (Wald, dissenting). Coun- time. See Waste Treatment Hazardous of interests be within the zone of are not within the zone interests from the tors See, suing. e.g., As- and are barred eases where we have not. Battery Recyclers, Inc. v. sociation of Moreover, nothing there is the Clean (D.C.Cir.2013) EPA, 716 F.3d Air Act that poses a stricter limit on com- (lead object regu- smelter could not to lax petitor suits than in APA involving cases *45 plaintiff other lead smelters: ob- lation of other statutes. The default rule set forth im-
jected any regulatory “not to burden Supreme Court for APA cases is instead to the absence of posed on but sue, competitors may unless the sub- regulatory imposed compet- burdens on its stantive statute at issue excludes such itors”); Grocery Associa- Manufacturers Nothing suits. the Clean Air Act indi- (D.C.Cir. 169, 179 tion v. 693 F.3d an competitor cates intent to exclude suits. 2012) (food producers object could not surely incongruent And it is not with the producers lax of ethanol regulation who Clean Air Act to competitor allow suits. compete producers with food market to definition, By competitor successful suit corn);10 purchase Recycling Cement Kiln would mean that the source would have to v. 255 F.3d 871 Coalition comply with Air stricter Clean Act limits. (D.C.Cir.2001) (hazardous waste combu- simply: Put Allowing competitor suits in object lax regulation stors could not of Air Act Clean cases will mean cleaner air. in- competing combustors: “the Council’s Excluding competitor suits in Air Clean only increasing regulatory terest lies Act cases will mean dirtier air. others”); Pipeline ANR Co. v. burden Apart from our case internal (D.C.Cir.2000) law’s incon- FERC, 205 F.3d 408 (natural sistency, larger it, I problem, as see is gas pipeline operator could not the line of cases in this Court that object regulation competitor’s to lax competitors have held that are pipeline: plaintiffs “only concern is with outside Nautilus, suppressing competition step from zone of interests is out of with the that economic not Supreme interest within Court’s case law Data Pro- protected more, zone of interests cessing to Clarke. What the Su- NEPA”); Liquid Carbonic Industries preme Court’s since cases Clarke have (D.C.Cir. FERC, Corp. v. 29 F.3d 705 conception reinforced the broad set 1994) (industrial gas corporation could not See, Processing forth in Data and Clarke. object regulation competitor’s to lax fa- e.g., National Credit Union Administra- being cilities: “There no indication that Co., tion v. First National Bank & Trust Congress intended to benefit a second-tier 479, 493-94, 522 U.S. 118 S.Ct.
competitor, Liquid Carbonic does not have (1998) (“As competitors L.Ed.2d of fed- standing beneficiary.”). as an intended unions, respondents certainly eral credit an in limiting have interest the markets competing
Those
lines of cases have de-
serve,
that federal credit unions can
veloped
any apparent distinguish-
without
interpretation
has affected
ing principle.
carefully
NCUA’s
Having
reviewed
by allowing
I
that interest
federal credit un-
together
sitting,
all of them
in one
frank-
base.”);
ly
separate
cannot find a clear line to
ions to increase their customer
see
competitors
cases where we have found
to also Air Courier
America v.
Conference
Grocery
10. In
Association v.
made clear that
zone of interests test is
Manufacturers
EPA,
International,
(D.C.Cir.2012),
jurisdictional.
L.Ed.2d 1125
line with Data
Matchr-E reaffirmed —in
in which we
of cases
in a series
recent
plaintiff
Processing
Clarke—that
regulated
competitors
have held
among
a class
need not
challenge regula
standing to
in the
at hand.
entities have
to benefit
statute
intended
International,
that a
Inc. v.
further reaffirmed
tions.”);
And Match-E
Lexmark
—
interest's,
eco-
Inc.,
including
variety
wide
U.S.
Components,
Static Control
agency’s
al-
nomic interests related
1377, 1388-89,
—,
188 L.Ed.2d
respect
action with
legedly unlawful
(2014) (a
approach” to the
“lenient
else,
inter-
fall within the zone of
someone
appropriate
an
test “is
zone of interests
There,
owner
property
a residential
ests.
flexibility
preserving
means
Department
the Interior
vio-
claimed that
judicial-review provision,
APA’s omnibus
*46
a
acquired
parcel
law when it
lated federal
for violations of numer
permits
which
suit
by nearby
a
Indian tribe as
of land for use
that
varying character
do
ous statutes of
agreed
at 2202-03. All
a casino. See id.
action for
include causes of
not themselves
designed
not
that the federal statute was
review”).
judicial
objects
property
owner who
to benefit
post-Clarke
acquires
Among
Supreme
the
Court’s
when the Federal Government
in
owner’s land
order
property
another
decisions is Match-E-Be-Nash-She-Wish
at 2210 n. 7. The
Patchak,
help Indians. See id.
Band
Pottawatomi Indians
nonetheless concluded
Supreme Court
-U.S.-,
2199, 183 L.Ed.2d
of interests test was satisfied.
the zone
(2012). Athough
competitor
not a
Supreme
“neighbors
Court
said
case,
reasoning of Matchr-E reinforces
the
(like Patchak) are
to the use
reasonable—
Clarke,
Processing and
and reaffirms
Data
indeed, predictable
challengers of the
—
conception
Court’s broad
Supreme
interests,
Secretary’s decisions: Their
APA.
zone of interests under the
economic, environmental,
Matchr-E,
in
Jus-
Writing
the Court
aesthetic,
regulatory
come within
465’s
added).
that the zone of in-
Kagan
tice
reiterated
(emphasis
at 2212
ambit.” Id.
The test
requirement
terests
is a low bar:
words,
its music and its
Match-E
Given
demanding.
especially
“is not meant to be
put a final end to this Court’s
should have
keeping
the test
in
with Con-
apply
We
to the zone of interests
approach
crabbed
enacting
intent when
gress’s evident
continued
test. But our Court has still
agency
presumptively
APA make
action
since Matchr-E to hold—at least
some
require any
indi-
renewable. We do
pre-
of interests test
cases—that
zone
congressional purpose to
cation
complaining
vents businesses from
about
benefit
And we have al-
plaintiff.
allegedly illegal agency under-regulation
the would-be
See, e.g., As-
ways conspicuously
competitor
included the word ‘ar-
their
businesses.
Battery Recyclers, 716 F.3d at
sociation
in the
guably’
test
indicate
Association,
674; Grocery
any
goes
plaintiff.
doubt
benefit
Manufacturers
respectful health, process, safety,
administrative regulation, and for the
and environmental interests affected these cases
economic muddling along
for us to continue in this
way. This state of affairs should receive a point
careful examination at some party
near future. Whether a can sue challenge illegal agency
court to action on important
such matters should not come of a equivalent flip.
down coin We
can do better.
[*] [*] [*] respectfully majority
I dissent from the
opinion’s conclusion that reason-
ably exclude consideration of costs when
deciding whether it is appropriate regu-
late electric pro- utilities under the MACT test,
gram. And on the zone I of interests
accept majority opinion’s conclusion
that Julander falls outside the zone of in-
terests, at prece- least under some of our view, my precedents
dents. But in those
are not consistent with other decisions of Supreme
this Court or with the Court’s
case law should be corrected due
course. BROOKS, Appellant
Patricia A. GRUNDMANN, Chairman,
Susan Tsui Systems Board,
Merit Protection
Appellee.
No. 12-5171. Appeals,
United States Court of
District of Columbia Circuit.
Argued Dec. 2013. April
Decided