American Lung Ass'n v. E.P.A., s. 96-1251

• Decision Date: 03 March 1999
• Docket Number: Nos. 96-1251,s. 96-1251
• Citation: 134 F.3d 388,328 U.S. App. D.C. 232
• Parties: , 328 U.S.App.D.C. 232, 28 Envtl. L. Rep. 20,481 AMERICAN LUNG ASSOCIATION, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, United States Environmental Protection Agency, Respondents, Appalachian Power Company, et al., Intervenors. & 96-1255.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 388

134 F.3d 388

45 ERC 2025, 328 U.S.App.D.C. 232, 28

Envtl. L. Rep. 20,481

AMERICAN LUNG ASSOCIATION, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner Administrator, United States Environmental Protection Agency, Respondents Appalachian Power Company, et al., Intervenors.

Nos. 96-1251 & 96-1255.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 26, 1997.

Decided Jan. 30, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied March 3, 1999.

Robert E. Yuhnke argued the cause for petitioners. With him on the briefs were Christine L. Shaver, Boulder, CO and Howard I. Fox, Washington, DC.

Karen L. Egbert, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for respondents. With her on the brief were Lois J. Schiffer, Assistant Attorney General, and Michael L. Goo, Counsel, Environmental Protection Agency, Washington, DC. Gerald K. Gleason, Counsel, entered an appearance.

Andrea Bear Field, Henry V. Nickel, Linda C. Trees, and James R. Bieke, Washington, DC, were on the brief for intervenor Appalachian Power Company, et al. Ross S. Antonson, Washington, DC, entered an appearance.

Before: EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

On behalf of the nation's nearly nine million asthmatics, the American Lung Association and the Environmental Defense Fund challenge the Environmental Protection Agency's refusal to revise the primary national ambient air quality standards for sulfur dioxide (SO sub2 ). Declining to promulgate a more stringent national standard, the EPA Administrator concluded that the substantial physical effects experienced by some asthmatics from exposure to short-term, high-level SO sub2 bursts do not amount to a public health problem. Because the Administrator failed adequately to explain this conclusion, we remand for further elucidation.

I

Driven by its "deep concern for protection of the health of the American people," SEN. REP. NO. 91-1196, at 1 (1970) ("SENATE REPORT"), Congress enacted the Clean Air Act Amendments of 1970, Pub.L. No. 91-604, 84 Stat. 1676 (1970) (codified as amended at 42 U.S.C. §§ 7401-7671q (1994)), mandating a "massive attack on air pollution," SENATE REPORT at 1. As amended, the Clean Air Act erects a comprehensive system of national ambient air quality standards ("NAAQS") to regulate health-threatening air pollutants. The statute defines primary NAAQS as "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health." 42 U.S.C. § 7409(b)(1).

Once the EPA Administrator concludes that a pollutant "may reasonably be anticipated to endanger public health or welfare" and that it comes from "numerous or diverse mobile or stationary sources," id. § 7408(a)(1)(A)-(B), the Act requires the Administrator to produce "criteria," defined as the latest scientific data on "all identifiable effects on public health" caused by that pollutant. Id. § 7408(a)(2). Based on these comprehensive criteria and taking account of the "preventative" and "precautionary" nature of the act, Lead Industries Ass'n, Inc. v. EPA, 647 F.2d 1130, 1155 (D.C.Cir.1980), the Administrator must then decide what margin of safety will protect the public health from the pollutant's adverse effects--not just known adverse effects, but those of scientific uncertainty or that "research has not yet uncovered." Id. at 1153. Then, and without reference to cost or technological feasibility, the Administrator must promulgate national standards that limit emissions sufficiently to establish that margin of safety. See 42 U.S.C. § 7409(b)(1); American Petroleum Inst. v. Costle, 665 F.2d 1176, 1181-82 (D.C.Cir.1981) (describing NAAQS promulgation procedure); Lead Industries, 647 F.2d at 1148-50 (in establishing NAAQS, Congress deliberately subordinated economic and technological feasibility concerns to the achievement of public health goals). States bear primary responsibility for attaining, maintaining, and enforcing these standards. See 42 U.S.C. § 7410.

In its effort to reduce air pollution, Congress defined public health broadly. NAAQS must protect not only average healthy individuals, but also "sensitive citizens"--children, for example, or people with asthma, emphysema, or other conditions rendering them particularly vulnerable to air pollution. SENATE REPORT at 10; Lead Industries, 647 F.2d at 1152. If a pollutant adversely affects the health of these sensitive individuals, EPA must strengthen the entire national standard. Lead Industries, 647 F.2d at 1153 (NAAQS "must be set at a level at which there is 'an absence of adverse effect' on [ ] sensitive individuals") (quoting SENATE REPORT at 10).

Sulfur Dioxide and Asthmatics

A highly reactive colorless gas smelling like rotten eggs, sulfur dioxide derives primarily from fossil fuel combustion. Best known for causing "acid rain," at elevated concentrations in the ambient air, SO sub2 also directly impairs human health. As the Administrator explains in the Final Decision on review here, SO sub2 can affect healthy nonasthmatic individuals at concentrations above 2.0 parts per million ("ppm"); below 2.0 ppm, it primarily affects people with asthma. National Ambient Air Quality Standards for Sulfur Oxides (Sulfur Dioxide)--Final Decision, 61 Fed.Reg. 25,566, 25,570 (1996).

Following the passage of the Clean Air Act, EPA promulgated the SO sub2 NAAQS in effect today. The primary standards consist of a 24-hour standard (0.14 ppm averaged over 24 hours not to be exceeded more than once a year) and an annual standard (0.03 ppm annual arithmetic mean). Id. at 25,568. EPA also established a "secondary" three-hour standard (0.50 ppm averaged over three hours not to be exceeded more than once a year), designed to protect the "public welfare" against non-health-related effects such as visibility impairment or environmental degradation, see 42 U.S.C. § 7409(b)(2). Petitioners do not challenge these existing standards.

Approximately four percent of the nation's population suffers from asthma. Characterized by bronchoconstriction--shortness of breath, coughing, wheezing, chest tightness, and sputum production--asthma is triggered by many different stimuli, including cold or dry air, exercise or pollen, as well as airborne pollutants. The effects of bronchoconstriction can vary from short-term discomfort, such as an hour-long reaction with no lasting after-effects, to asthma attacks requiring medication or hospitalization. Although rare, death can result.

Sulfur dioxide induces bronchoconstriction in asthmatics, but only under certain conditions. To experience adverse effects from SO sub2 concentrations below 1.0 ppm, asthmatics must be exposed for five minutes or longer while breathing quickly and heavily through both nose and mouth, the sort of breathing induced by light exercise, shoveling snow, climbing several flights of stairs, or jogging to catch a bus. At concentrations above 2.0 ppm, SO sub2 causes adverse effects even if the exposure lasts less than five minutes or the asthmatic breathes regularly. See Second Addendum to Air Quality Criteria for Particulate Matter and Sulfur Oxides (1982): Assessment of Newly Available Health Effects Information (1986).

The Challenged Final Decision

This case concerns the effect on asthmatics of what are known as high-level SO sub2 bursts, defined as emissions of 0.50 ppm or more lasting at least five minutes. Occurring sporadically and from specific sources, SO sub2 bursts come primarily from power utilities; the rest come from nonutility sources such as industrial boilers, petroleum refineries, pulp and paper mills, sulfuric acid plants, and aluminum smelters.

Citing the health concerns of asthmatics and relying on a 1977 amendment to the Clean Air Act, in which Congress ordered the Agency to review and revise all criteria and NAAQS by 1980 and at five-year intervals thereafter, 42 U.S.C. § 7409(d), petitioners urged EPA to issue a new NAAQS limiting short-term SO sub2 bursts. Not until 1996, after petitioners sued twice to compel a decision, see Environmental Defense Fund v. Thomas, 870 F.2d 892 (2d Cir.1989); American Lung Ass'n v. Browner, Civil Action No. 92-5316 (E.D.N.Y. Nov. 12, 1992), and after two rounds of public notice and comment, did EPA issue its final decision regarding SO sub2 NAAQS. See NAAQS for Sulfur Oxides (Sulfur Dioxide)--Reproposal, 59 Fed.Reg. 58,958 (1994); Proposed Decision Not To Revise the National Ambient Air Quality Standards for Sulfur Oxides (Sulfur Dioxide), 53 Fed.Reg. 14,926 (1988). Rejecting petitioners' arguments, EPA concluded not only that the annual and 24-hour primary standards needed no revision, but also that an additional five-minute standard was unnecessary to protect asthmatics. See Final Decision at 25,575-76.

In arriving at her final decision, the Administrator reviewed a decade of data on the extent of high-level short-term SO sub2 bursts and their effects on public health. See Review of the National Ambient Air Quality Standards for Sulfur Oxides: Assessment of Scientific and Technical Information: Supplement to the 1986 OAQPS Staff Paper Addendum (Sept. 1994); Supplement to the Second Addendum (1986) to Air Quality Criteria for Particulate Matter and Sulfur Oxides (1982): Assessment of New Findings on Sulfur Dioxide Acute Exposure Health Effects in Asthmatic Individuals (Aug.1994). Based on clinical studies of mild to moderate asthmatics, she found that when such individuals breathe rapidly while exposed to SO sub2 concentrations of 0.60 ppm for five minutes, "substantial percentages (>= 25 percent)" experience effects "distinctly exceeding ... [the] typical daily variation in lung function" that asthmatics routinely experience. Final Decision ...