325 F.3d 374 (D.C. Cir. 2003), 01-1228, Sierra Club v. E.P.A.

Docket Nº:01-1228
Citation:325 F.3d 374
Party Name:Sierra Club v. E.P.A.
Case Date:April 25, 2003
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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325 F.3d 374 (D.C. Cir. 2003)

SIERRA CLUB, et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, United States Environmental Protection Agency, Respondents.

Engine Manufacturers Association, et al., Intervenors.

Nos. 01-1228, 01-1231, 01-1232, 01-1237, 01-1238.

United States Court of Appeals, District of Columbia Circuit

April 25, 2003

Argued March 11, 2003.

Rehearing En Banc Denied Sept. 11, 2003.[*]

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[Copyrighted Material Omitted]

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

James S. Pew argued the cause for petitioners Sierra Club, et al. With him on the briefs were Howard Fox, David B. Rivkin, Jr. and Lee A. Casey.

Rachel Zaffrann, Assistant Attorney General, New York State Attorney General's Office, argued the cause for petitioners States of New York and Connecticut. With her on the briefs were Eliot Spitzer, Attorney General, Peter H. Lehner, Assistant Attorney General, Richard Blumenthal, Attorney General, Connecticut Attorney General's Office, and Mark Kindall, Assistant Attorney General. Kimberly P. Massicotte, Assistant Attorney General, entered an appearance.

Claudia M. O'Brien argued the cause for petitioner International Truck and Engine Corporation. With her on the brief were Laurence H. Levine and Robert M. Sussman.

David W. Marshall was on the brief for amicus curiae Clean Air Task Force in support of environmental petitioners.

Angeline Purdy and David J. Kaplan, Attorneys, U.S. Department of Justice, argued the cause for respondents. With them on the brief was Patrice Simms, Counsel, U.S. Environmental Protection Agency. John C. Cruden, Assistant Attorney General, U.S. Department of Justice, entered an appearance.

Claudia M. O'Brien argued the cause for intervenors International Truck and Engine Corporation, et al. in support of respondent. With her on the brief were Laurence H. Levine, Robert M. Sussman, Janice K. Raburn, David Thomas Deal, Richard A. Penna, Howard E. Shapiro, Jed R. Mandel and Timothy A. French.

James S. Pew and Howard I. Fox were on the brief for intervenors Sierra Club, et al. in support of respondent.

Before: RANDOLPH and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Senior Circuit Judge:

In the 1990 Amendments to the Clean Air Act Congress directed the Environmental

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Protection Agency to regulate emissions of what the agency calls Mobile Source Air Toxics--that is, toxic chemicals emitted by motor vehicles. Section 202(l) of the amended Clean Air Act requires the Administrator first to complete a study assessing the "need for, and feasibility of, controlling emissions of toxic air pollutants ... associated with motor vehicles and motor vehicle fuels," 42 U.S.C. § 7521(l)(1), and then to promulgate regulations "based on" that study, id. § 7521(l)(2). The regulations are to contain standards

which the Administrator determines reflect the greatest degree of emission reduction achievable through the application of technology which will be available, taking into consideration the standards established under subsection (a) of this section, the availability and costs of the technology, and noise, energy, and safety factors, and lead time.

Id. In March 2001 EPA released the regulations, Control of Emissions of Hazardous Air Pollutants From Mobile Sources, 66 Fed.Reg. 17,230 (March 29, 2001) (the "Final Rule"). Here we review challenges brought by the Sierra Club and several other environmental groups; by the states of New York and Connecticut, also seeking greater stringency; and by the International Truck Corporation, seeking removal of "diesel particulate matter and diesel exhaust organic gases" (in sum, diesel exhaust) from the EPA's list of toxics. Finding most of the claims of the first two sets of petitioners ill founded, and International Truck's claim unripe, we uphold all aspects of the rule, save one--the agency's unexplained rejection of proposals to require "on-board diagnostics" for very heavy heavy-duty vehicles.

* * *

Before delving into the environmental and state petitioners' attacks on specific features of the rule, we begin by addressing three general statutory issues. The environmental petitioners say that the whole rule violated the statutory mandate because it was not "based on" a study meeting the requirements of § 202(l)(1). Petitioners acknowledge that the EPA did conduct a study (several studies, in fact), and that the agency used information gleaned from those studies in the rulemaking. But they claim that the studies were inadequate. As we understand the claim, petitioners do not ask us to grade the study against the substantive standards of (l)(1), but rather to find that its alleged inadequacies doom the Final Rule.

But we do not read the statute as making the validity of the rule depend on that of the study. In the first place, petitioners do not propose a method of review for determining whether a rule was or was not "based on" a study, nor does any seem immediately apparent; moreover, the statute doesn't say that the rule must be based exclusively on the study. More importantly, for purposes of assessing the EPA's rule, the requirement that the rule be "based on" the study bears no plausible relationship to the criteria that obviously govern the agency--those of § 202(l)(2), quoted above. The study subsection, § 202(l)(1), directs the Administrator only to evaluate the "need for" and "feasibility of" "means and measures" for controlling mobile air toxics. To the extent that a "feasibility" analysis in the study involves the same considerations as § 202(l)(2), it adds nothing; to the extent that it involves something else, we do not think it can override (l)(2)'s explicit requirements. Thus, the agency's failure to have studied "feasibility" per se would not affect the validity of the rule.

The state petitioners' attacks on EPA's exposure modeling similarly fail to undermine

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the rule. EPA acknowledges that its modeling can be improved, updated and refined, but petitioners have identified no portion of the Final Rule in which the agency specifically relied on the exposure modeling for justification, and haven't pointed to any...

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