Sierra Club v. U.S. E.P.A.

• Decision Date: 24 December 2002
• Docket Number: No. 02-11188.,02-11188.
• Parties: SIERRA CLUB, Southern Organizing Committee for Economic and Social Justice, Georgia Coalition for the People's Agenda, Environmental Defense, Petitioners-Appellants, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent-Appellee. State of Georgia, Intervenor.
• Court: U.S. Court of Appeals — Eleventh Circuit

315 F.3d 1295

SIERRA CLUB, Southern Organizing Committee for Economic and Social Justice, Georgia Coalition for the People's Agenda, Environmental Defense, Petitioners-Appellants, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent-Appellee.

State of Georgia, Intervenor.

No. 02-11188.

United States Court of Appeals, Eleventh Circuit.

December 24, 2002.

S. Wesley Woolf, Southern Environmental Law Center, Atlanta, GA, J. David Farren, Chapel Hill, NC, Robert E Yuhnke, Boulder, CO, for Petitioners-Appellants.

Norman L. Rave, Jr., U.S. Dept. of Justice, Washington, DC, for Respondent-Appellee.

Timothy P. Duggan, Jefferson City, MO, Donald Trahan, La. Dept. of Environmental Quality, Baton Rouge, LA, A. Benjamin Goldgar, Chicago, IL, for Amicus Curiae.

Diane L. Deshazo, Atlanta, GA, Patricia T. Barmeyer, Lewis B. Jones, King & Spalding, Atlanta, GA, for Intervenor.

Petition for Review of an Order of the Environmental Protection Agency.

Before BLACK and MARCUS, Circuit Judges, and MIDDLEBROOKS^*, District Judge.

BLACK, Circuit Judge:

Several organizations collectively petitioned for review of a final order of the Environmental Protection Agency (EPA) determining the Atlanta Motor Vehicle Emissions Budget (MVEB) to be adequate for transportation conformity. In response, EPA moved to dismiss the petition as moot. Because we conclude the petition for review is now moot, we will grant Respondent's motion and dismiss the petition.

I.

The Clean Air Act, 42 U.S.C. §§ 7401-7671q, establishes a comprehensive program for controlling and improving the nation's air quality through state and federal regulation. The Clean Air Act (CAA) charges EPA with identifying dangerous air pollutants and formulating the National Ambient Air Quality Standards (NAAQS) to specify the maximum permissible concentration of those pollutants in the ambient air. For purposes of this petition for review, the only relevant pollutant is ground-level ozone resulting from motor vehicle emissions.¹

The CAA requires each State to bring its air quality into attainment with the NAAQS. To effectuate this goal, the CAA classifies air quality control regions and assigns each nonattaining region an attainment deadline according to its classification. Regions determined to be nonattainment regions are classified into the following five groups: marginal, moderate, serious, severe, and extreme. Id. § 7511(a)(1). Atlanta was classified as a serious ozone nonattainment area, with a statutory attainment deadline of November 15, 1999.

To bring about attainment of the NAAQS, the CAA creates an extensive planning and review procedure. States must draft State Implementation Plans (SIPs) specifying the emission limitations necessary for attainment, maintenance, and enforcement of the NAAQS. Id. § 7410. A SIP is submitted to EPA for approval, and EPA approves SIPs based in part on whether the specified emissions controls will enable the region to achieve the NAAQS by the applicable attainment deadline. Id. § 7410(k). In addition, the CAA requires specific emissions controls based upon a region's nonattainment classification, and these emissions controls must be included in the SIP. Id. § 7511a. For example, a severe nonattainment area is required to implement a Reformulated Gasoline (RFG) program not required for a serious nonattainment area. See id. § 7545(k). States must periodically revise their SIPs and receive EPA approval for the revisions. Id. § 7410(a)(2)(H).

The extensive 1990 Amendments to the CAA bolstered the planning and review requirements in various ways. Prior to 1990, States failed to meet their NAAQS attainment deadlines in part because federal agencies ignored the deadlines when approving federal transportation programs that affected motor vehicle emissions, which in turn hampered attainment. With the 1990 amendments, Congress created new conformity requirements with which all transportation plans and projects must comply. Generally, the federal government may not approve or fund any transportation program or project unless it has been found to conform to the applicable SIP for the region. Id. § 7506(c). The Motor Vehicle Emissions Budget (MVEB), a component part of each SIP, is central to transportation conformity decisions. The MVEB is a projection of future emissions from motor vehicles for a given region. Id. § 7502(c)(4). The MVEB is thus at the intersection of the CAA and transportation planning. A SIP, along with its component MVEB, effectively limits future transportation investments in a region so transportation planning will be consistent with achieving the NAAQS by the applicable deadline.

In addition to the conformity requirements, the 1990 CAA Amendments contained a number of other incentives for States to meet their attainment deadlines. The most important of these is the "bumpup" provision, under which a nonattainment area that fails to meet the attainment deadline for its classification is bumped-up "by operation of law" to a higher classification. Id. § 7511(b)(2). While the higher classification results in an extension of the attainment deadline, it also mandates whatever specific emissions controls apply to the new classification.²

Timely review and approval of a region's SIP is essential to the region's transportation planning because all transportation decisions must conform to the SIP. In the ordinary course of business, however, EPA takes between 12 and 18 months to review and approve a new SIP. To allow for effective transportation planning in the interim between submission of a new SIP and its approval, EPA regulations authorize EPA to approve an MVEB standing alone via a preliminary finding that the MVEB is adequate for transportation conformity purposes. See 40 C.F.R. § 93.118 (2002). The effect of such an MVEB adequacy determination is to allow federal agencies to make conformity determinations based on the MVEB even before the proposed SIP is approved by EPA.³ EPA may make an adequacy determination for an MVEB only when, inter alia, the MVEB is part of a SIP submitted to EPA for review and the MVEB is consistent with the SIP's control measures and the applicable requirements for attainment. EPA describes an adequacy determination as the result of a "cursory review" using "minimum criteria." See Transportation Conformity Rule Amendments: Flexibility and Streamlining, 62 Fed.Reg. 43,780, 43,782 (Aug. 15, 1997). Once EPA finally approves a SIP, the SIP (along with its constituent MVEB) becomes the governing plan for conformity purposes, see 40 C.F.R. § 93.118(a), thereby superseding the interim determination that the standalone MVEB is adequate for transportation conformity.

One of the chief difficulties in implementing the 1990 CAA Amendments related to the problem of ozone transport. Many States were unable to complete their SIPs by the statutory deadlines because they lacked necessary information about interstate ozone transfer — the process by which ozone precursors move from upwind to downwind areas. In response to the scientific difficulties posed by ozone transport, EPA formed the Ozone Transport Assessment Group (OTAG) in 1995. OTAG completed its review in June of 1997, concluding that nitrogen oxide (NOx) reductions in upstate areas were the key to controlling ozone transport.

In response to OTAG's work, EPA issued a final rule known as the NOx SIP Call Rule in October 1998. See Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone, 63 Fed.Reg. 57,356 (Oct. 27, 1998) (NOx SIP Call Rule). The NOx SIP Call Rule required 23 upwind jurisdictions to revise their SIPs to prohibit ozone precursor emissions that contributed to nonattainment of the ozone NAAQS in downwind States. The original NOx SIP Call Rule required the reductions in upwind States to be effective by 2003. The D.C. Circuit upheld much of the rule, and it also extended the deadline to 2004. See Michigan v. EPA, 213 F.3d 663 (D.C.Cir.2000); Michigan v. EPA, No. 98-1497, 2000 WL 1341477 (D.C.Cir. Aug. 30, 2000) (extending deadline under the NOx SIP Call Rule to 2004).

Although the NOx SIP Call Rule would reduce ozone transport from upwind States by 2004, that would be too late for downwind areas classified as serious nonattainment regions, with attainment deadlines of November 15, 1999. EPA therefore issued its Extension Policy. See Extension of Attainment Dates for Downwind Transport Areas, 64 Fed. Reg. 14,441 (March 25, 1999) (Extension Policy). The Extension Policy interpreted the CAA to allow EPA to grant extensions to moderate and serious areas that suffered from ozone transport, thereby postponing their attainment deadlines without reclassifying those areas to higher levels. EPA would grant deadline extensions only after notice and comment rulemaking for each region, usually as part of a SIP review. According to EPA, the Extension Policy preserved the responsibilities of downwind areas under the statute without penalizing them for the impossibility of reducing ozone transported from upwind states.

In July 2001, Georgia submitted to EPA a proposed SIP that would meet an attainment deadline of 2004. In so doing, Georgia's SIP requested an extension of its 1999 deadline (as a serious nonattainment area) pursuant to EPA's Extension Policy. In December 2001, EPA informed Georgia that it was finding the proposed MVEB in the SIP adequate for transportation conformity purposes. See Adequacy Status of the Atlanta, Georgia, Ozone Attainment Demonstration for Transportation Conformity Purposes, 67 Fed.Reg. 887 (Jan. 8, 2002) (Adequacy Determination).

EPA based its MVEB Adequacy Determination on the 2004 attainment date in Georgia's proposed SIP because that deadline would inevitably apply to the SIP, whether or not EPA granted Georgia's request for an extension pursuant to the Extension Policy. EPA reasoned either (1) Georgia...