American Corn Growers Ass'n v. E.P.A.

• Decision Date: 24 May 2002
• Docket Number: No. 99-1358.,No. 01-1113.,No. 99-1359.,No. 99-1350.,No. 99-1348.,No. 99-1357.,No. 99-1351.,No. 99-1352.,No. 01-1111.,No. 99-1349.,No. 01-1112.,99-1348.,99-1349.,99-1350.,99-1351.,99-1352.,99-1357.,99-1358.,99-1359.,01-1111.,01-1112.,01-1113.
• Citation: 291 F.3d 1
• Parties: AMERICAN CORN GROWERS ASSOCIATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. State of Michigan, Department of Environmental Quality, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1

291 F.3d 1

AMERICAN CORN GROWERS ASSOCIATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

State of Michigan, Department of Environmental Quality, et al., Intervenors.

No. 99-1348.

No. 99-1349.

No. 99-1350.

No. 99-1351.

No. 99-1352.

No. 99-1357.

No. 99-1358.

No. 99-1359.

No. 01-1111.

No. 01-1112.

No. 01-1113.

United States Court of Appeals, District of Columbia Circuit.

Argued February 25, 2002.

Decided May 24, 2002.

On Petitions for Review of an Order of the Environmental Protection Agency

Peter Glaser argued the cause for Industry petitioners and intervenors on the BART Issues in Case Nos. 99-1348, 99-1349, 99-1350, 99-1351, 99-1352, 99-1356, 99-1357, 99-1358 and 99-1359. With him on the joint briefs were Paul M. Seby, Henry V. Nickel, F. William Brownell, Michael L. Teague, Kevin L. Fast, David M. Flannery, Kathy G. Beckett, Scott D. Goldman, Harold P. Quinn, Jr., William H. Lewis, Jr., and Michael A. McCord.

Kevin L. Fast argued the cause for Industry petitioners in Case Nos. 01-1111, 01-1112 and 01-1113. With him on the joint briefs were Peter Glaser, Paul M. Seby, Henry V. Nickel, F. William Brownell, and Michael L. Teague.

David S. Baron argued the cause and filed the briefs for petitioner Sierra Club.

Jennifer M. Granholm, Attorney General, State of Michigan, Thomas L. Casey, Solicitor General, and John Fordell Leone, Assistant Attorney General, were on the briefs for intervenor State of Michigan.

Pamela S. Tonglao, Kenneth C. Amaditz, and H. Michael Semler, Attorneys, U.S. Department of Justice, argued the causes for respondents. With them on the brief was M. Lea Anderson, Attorney, U.S. Environmental Protection Agency.

Erick Titrud argued the cause for intervenors State of Maine, State of New Hampshire, State of Vermont, and Tribal and Environmental intervenors. With him on the joint brief were Ann Brewster Weeks, Vickie L. Patton, William G. Grantham, G. Steven Rowe, Attorney General, State of Maine, Philip T. McLaughlin, Attorney General, State of New Hampshire, Maureen D. Smith, Senior Assistant Attorney General, and William H. Sorrell, Attorney General, State of Vermont.

Peter Glaser, Henry V. Nickel, F. William Brownell, Michael L. Teague, Kevin L. Fast, Paul M. Seby, Harold P. Quinn, Jennifer M. Granholm, Attorney General, State of Michigan, John Fordell Leone, Assistant Attorney General, David M. Flannery, Kathy G. Beckett, William H. Lewis, Jr., and Michael A. McCord were on the joint brief for Industry and State intervenors, in support of respondents.

Mark L. Shurtleff, Attorney General, State of Utah, Fred Nelson, Assistant Attorney General, and Susan M. McMichael were on the brief for amici curiae State of Utah and State of New Mexico Environment Department, in support of respondent EPA.

Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part and dissenting in part filed by Circuit Judge GARLAND.

PER CURIAM:

In 1999, the Environmental Protection Agency promulgated a final rule to address regional haze. See Regional Haze Regulations, 64 Fed.Reg. 35,714 (July 1, 1999). The Haze Rule calls for states to play the lead role in designing and implementing regional haze programs to clear the air in national parks and wilderness areas that have been classified as "mandatory class I Federal areas,"¹ such as Yellowstone National Park, Grand Canyon National Park, and Shenandoah National Park. See 40 C.F.R. §§ 81.401-.437 (listing areas that have been designated as Class I areas where visibility is an important value). Numerous petitioners now challenge the Haze Rule. We vacate the rule in part and sustain it in part.

I. Introduction

"Regional haze," as EPA defines it, is visibility impairment caused by geographically dispersed sources emitting fine particles and their precursors into the air. See 64 Fed.Reg. at 35,715. The emission and movement of sulfur dioxide, oxides of nitrogen, and fine particulate matter from sources, such as power plants, contribute to haze. See id. Fine particulate matter scatters and absorbs light. See id.

Haze has degraded visibility in most of the country's national parks and wilderness areas. See id. The average visual range in many Class I areas in the western United States is 100 to 150 kilometers — which is just one-half to two-thirds the estimated visual range that would exist without manmade air pollution. See id. In most of the eastern United States, the average visual range is less than 30 kilometers — or about one-fifth the visual range that would exist under estimated natural conditions. See id.

Before 1977, the Clean Air Act (the "CAA" or the "Act") "did not elaborate on the protection of visibility as an air-quality related value." Chevron U.S.A., Inc. v. EPA, 658 F.2d 271, 272 (5th Cir.1981). But in 1977, "[i]n response to a growing awareness that visibility was rapidly deteriorating in many places, such as wilderness areas and national parks," id. at 272, Congress added § 169A to the Act. See Clean Air Act Amendments of 1977, Pub.L. No. 95-95, § 128, 91 Stat. 685, 742 (current version at 42 U.S.C. § 7491). Section 169A established as a national goal the "prevention of any future, and the remedying of any existing, impairment in visibility in mandatory class I areas which impairment results from manmade air pollution." See 91 Stat. at 742 (current version at 42 U.S.C. § 7491(a)(1)). Congress directed EPA to issue regulations requiring states to submit State Implementation Plans ("SIPs") containing emission limits, schedules of compliance, and other measures necessary to make reasonable progress toward meeting the national visibility goal. See 91 Stat. at 743 (current version at 42 U.S.C. § 7491(b)(2)). In addition, Congress required states to address possible visibility impairment caused by currently-operating large stationary sources which had been in operation between 1962 and 1977. See 91 Stat. at 743 (current version at 42 U.S.C. § 7491(b)(2)(A)).

Congress also gave EPA the responsibility of promulgating regulations under § 169A to "assure ... reasonable progress toward meeting the national goal." See 91 Stat. at 742-43 (current version at 42 U.S.C. § 7491(a)(4)). EPA issued its first regulations in 1980. See 45 Fed.Reg. 80,084 (Dec. 2, 1980). The 1980 visibility regulations, which apply to states containing at least one Class I area, addressed visibility impairment reasonably attributable to one source, or to a small number of sources. See id. at 80,085. EPA limited the reach of the 1980 regulations to impairment attributable to specific sources and deferred any action on regional haze attributable to multiple sources located across broad geographic regions because there was insufficient data regarding the relationship between emitted pollutants, pollutant transport and visibility impairment. See id. at 80,086.

In 1990, Congress amended the Clean Air Act again, adding § 169B in an attempt to prompt EPA to further address visibility impairment in national parks and wilderness areas. See Clean Air Act Amendments, Pub.L. No. 101-549, § 816, 104 Stat. 2695 (1990) (current version at 42 U.S.C. § 7492). Section 169B requires, among other things, that EPA undertake research to identify "sources" and "source regions" of visibility impairment in Class I areas, consider designating transport commissions to study the interstate movement of pollutants, and establish a transport commission for the Grand Canyon National Park. See 42 U.S.C. § 7492.

EPA established the Grand Canyon Visibility Transport Commission ("GCVTC") in 1991 to assess information about the adverse impacts on visibility in and around sixteen Class I areas on the Colorado Plateau region and to provide policy recommendations to EPA to address such impacts. See 56 Fed.Reg. 57,522 (Nov. 12, 1991). The GCVTC issued its report to EPA in 1996. Then in 1997 EPA issued a notice of proposed rulemaking with regard to regional haze, see 62 Fed.Reg. 41,138 (July 31, 1997), noting that advances in scientific and technical knowledge, including analyses provided by the GCVTC, had made it possible for EPA to target region-wide visibility impairment. After receiving more than 1,300 comments to the proposed rule, EPA published the final Haze Rule on July 1, 1999. See 64 Fed.Reg. at 35,714. The final Haze Rule reaches all states because, EPA concluded, all states contain sources whose emissions are "reasonably anticipated to contribute to regional haze in a Class I area." Id. at 35,721. Under the Haze Rule, a state must develop and submit a SIP that provides for reasonable progress toward achieving "natural visibility conditions" in the national parks and wilderness areas in that state. See 40 C.F.R. § 51.308(d)(1). SIPs addressing regional haze in an "attainment" area must be submitted within one year of the date the area is designated as "attainment," and revised SIPs for "non-attainment" areas must be submitted within three years after the designation. See id. § 51.308(b)(1)-(2).

The Haze Rule, for the most part, does not specify what control measures a state must implement in its initial SIP. See 64 Fed.Reg. at 35,721 (noting that the determination of what specific control measures must be implemented "can only be made by a State once it has conducted the necessary technical analyses of emissions, air quality, and the other factors that go into determining reasonable progress"). But the rule does require states to: (1) provide for an improvement in visibility in the 20 percent most impaired days; (2) ensure that there is no degradation in visibility during the 20 percent clearest days; and (3) determine the annual rate of visibility improvement that would lead to "natural visibility" conditions in 60 years. See 40 C.F.R. § 51.308(d)(1); see also id. § 51.301; 64 Fed.Reg. at 35,734. A state may not adopt a rate of improvement that would achieve natural visibility conditions in more than 60 years...