355 F.3d 817 (5th Cir. 2003), 02-60017, BCCA Appeal Group v. United States E.P.A.

Docket Nº:02-60017.
Citation:355 F.3d 817
Party Name:BCCA APPEAL GROUP; National Resources Defense Council; Environmental Defense; David Marrack; Jane W. Elioseff; Galveston-Houston Association for Smog Prevention, (GHASP); Galveston Bay Conservation and Preservation Association, (GBCPA); Sierra Club; and Brazoria County, Texas, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Christine
Case Date:October 28, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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355 F.3d 817 (5th Cir. 2003)

BCCA APPEAL GROUP; National Resources Defense Council; Environmental Defense; David Marrack; Jane W. Elioseff; Galveston-Houston Association for Smog Prevention, (GHASP); Galveston Bay Conservation and Preservation Association, (GBCPA); Sierra Club; and Brazoria County, Texas, Petitioners,


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Christine T. Whitman, Administrator; and Gregg A. Cooke, Administrator, United States Environmental Protection Agency, Region 6, Respondents,


State of Texas; Harris County, Texas; BCCA Appeal Group; Environmental Defense; David Marrack; Jane W. Elioseff; Galveston-Houston Association for Smog Prevention; Galveston Bay Conservation and Preservation Association; Houston-Galveston Area Council; City of Houston; and Sierra Club, Intervenors.

No. 02-60017.

United States Court of Appeals, Fifth Circuit

October 28, 2003

        As Amended on Denial of Rehearing and Rehearing En Banc Jan. 8, 2004.

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        F. Walter Conrad, Jr., Jacob Scott Janoe, Baker Botts, Houston, TX, Pamela M.

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Giblin, David Andrew Savage (argued), Derek Raymond McDonald, Baker Botts, Austin, TX, for BCCA Appeal Group, Petitioner.

        Wendy Lynn Blake, Thomas Allen Lorenzen (argued), U.S. Dept. of Justice, Environment & Natural Resources Div., Kenneth C. Amaditz (argued), Lily N. Chinn (argued), U.S. Dept. of Justice, Environmental Defense Section, Christine T. Whitman, U.S. EPA, Washington, DC, for U.S. E.P.A., Whitman and Greene, Respondents.

        John Stephen Carow (argued), Austin, TX, for State of Texas, Intervenor.

        Tracy Don Hester, Rebecca Jane Rentz, Bracewell & Patterson, Michael Anthony Stafford, Asst. Cty. Atty., Houston, TX, for Harris Cty., TX, Intervenor.

        James B. Blackburn, Jr., Blackburn & Carter, Houston, TX, for Elioseff, Galveston-Houston Ass'n for Smog Prevention and Galveston Bay Conservation and Preservation Ass'n, Intervenors.

        Robert E. Yuhnke (argued), Robert E. Yuhnke & Associates, Boulder, CO, for Marrack and Environmental Defense, Intervenors.

        Patrick Gallagher (argued), Sierra Club, San Francisco, CA, for Sierra Club, Intervenor.

        William Joseph Boyce (argued), Fulbright & Jaworski, Houston, TX, William A. Zeis, Fulbright & Jaworski, Austin, TX, for Houston-Galvestion Area Council, Intervenor.

        Craig Louis Weinstock, Gerald J. Pels (argued), Locke Liddell & Sapp, Houston, TX, for City of Houston, Intervenor.

        John DuVal Walke, David Gregg McIntosh (argued), Natural Resources Defense, Washington, DC, for Natural Resources Defense Council, Intervenor.

        Robert E. Morse, III (argued), Crain, Caton & James, Houston, TX, for Brazoria Cty., TX, Petitioner.

        On Petitions for Review of Final Rule of the United States Environmental Protection Agency.

        Before DAVIS and BENAVIDES, Circuit Judges, and RESTANI,[*] Judge.

        DAVIS, Circuit Judge, and RESTANI, Judge:

        Before the court are consolidated petitions for direct review of a decision of the United States Environmental Protection Agency ("EPA") approving (1) the State of Texas's one-hour ozone attainment demonstration state implementation plan ("SIP") for the Houston-Galveston severe ozone nonattainment area, and (2) the state's control strategy (collectively referred to as the "Houston SIP"). See Approval and Promulgation of Implementation Plans, 66 Fed. Reg. 57,160 (EPA Nov. 14, 2001)(final rule). Petitioners consist primarily of industries subject to the emissions controls in the Houston SIP, a county government affected by some of the SIP's provisions, environmental groups, and individuals who live and work in the Houston-Galveston area. Finding that the EPA's final rule approving the Houston SIP is not arbitrary, capricious, or otherwise not in accordance with law, we deny the petitions for review.


         A. Statutory Background

        The Clean Air Act ("CAA" or "the Act"), 42 U.S.C. §§ 7401-7671q (2000), establishes a comprehensive program for controlling

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and improving the nation's air quality through state and federal regulation. The EPA is responsible for, among other things, identifying air pollutants that endanger the public health and welfare and formulating National Ambient Air Quality Standards ("NAAQS") that specify the maximum permissible concentrations of those pollutants in the ambient air. Id. §§ 7408-7409. The EPA administrator has promulgated NAAQS for various pollutants, including ozone. See 40 C.F.R. § 50.9(a) (promulgating the one-hour ozone standard relevant to the present dispute). The one-hour NAAQS for ozone is .12 parts per million (although EPA often refers to it as 124.5 parts per billion ("ppb")), and an area attains the standard when maximum measured hourly average ozone concentrations exceed the NAAQS no more than one day per calendar year. See id. subsection (b).

        While the EPA determines the standards of air quality, the CAA imposes upon the states the primary responsibility for ensuring that the ambient air meets the NAAQS for the identified pollutants. 42 U.S.C. § 7407(a). The Act requires each state to prepare a one-hour ozone attainment demonstration SIP providing for the implementation, maintenance, and enforcement of the NAAQS for each air quality control region within the state. Id. § 7410(a)(1). The CAA requires each SIP to, among other things: (1) "include enforceable emission limitations and other control measures, means, or techniques ... as may be necessary or appropriate" to meet the statutory attainment deadline; (2) establish and operate "appropriate devices, methods, systems, and procedures" to "monitor, compile, and analyze data on ambient air quality;" (3) include an enforcement program; (4) contain "adequate provisions" to prohibit emissions activity that will significantly interfere with attainment or deteriorate air quality; (5) provide "necessary assurances" that the state has adequate resources "and authority under State (and, as appropriate, local) law to carry out [its] implementation plan;" (6) require owners and operators of stationary sources to monitor emissions and provide reports to the state; (7) provide for revision of the SIP as may be necessary to comply with revised NAAQS or to implement improved methods of attaining such standard; and (8) provide for the performance of air quality modeling as the EPA directs in order to predict an air pollutant's effect on ambient air quality. 42 U.S.C. § 7410(a)(2); see id. § 7502(c)(6) (requiring attainment of the NAAQS by the statutory deadline in designated nonattainment areas like Houston-Galveston).

         Thus, the CAA supplies the goals and basic requirements of state implementation plans, but the states have broad authority to determine the methods and particular control strategies they will use to achieve the statutory requirements. See Union Elec. Co. v. EPA, 427 U.S. 246, 266, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976) ("So long as the national standards are met, the state may select whatever mix of control devices it desires"). After reasonable notice and public hearings, a state must adopt the SIP and submit it to the EPA for review and approval. 42 U.S.C. § 7410(a)(1). The EPA in turn must approve the SIP if it meets all of the CAA's requirements. Id. § 7410(k)(3).

         B. Facts and Procedural History

        The Houston-Galveston area, a large geographic area consisting of eight counties, is one air quality control region in Texas. Houston-Galveston has one of the most serious ozone problems in the country. In order to comply with the CAA's requirement for attainment of the one-hour ozone standard by 2007, Texas

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adopted the attainment demonstration SIP at issue in this case, which the EPA approved in its final rule.

        An "attainment demonstration SIP" has two components: (1) the attainment demonstration, which is based on computer modeling that predicts whether the area will meet the ozone standard by the statutory deadline of 2007; and (2) the state's control strategy, which is its plan for achieving the actual emissions reductions needed for attainment. Modeling efforts for the Houston-Galveston SIP were complicated by a number of unique environmental factors and a shortage of readily-available control options sufficient to provide the needed reductions.1 Nevertheless, Texas developed an attainment demonstration and control strategy that its analyses confirmed would reach attainment by 2007.2

        The EPA evaluated the State's modeling and associated analyses and determined that they were consistent with the CAA and EPA's implementing regulations. EPA also conducted an exhaustive review of the State's control strategy and found that it was as stringent or more stringent than any other SIP in the country. See 66 Fed. Reg. at 57,178. Because the EPA determined that the control strategy would reach attainment by 2007 and that the SIP met other applicable requirements of the Act, EPA fully approved the Houston SIP as required by federal law. Id. at 57,160; see 42 U.S.C. § 7410(k)(3).

        Petitioners, most of whom participated in the underlying administrative proceedings, now challenge EPA's approval of the Houston SIP and Texas's control strategy.3 Two petitioners, BCCA Appeal Group ("BCCA")4 and Brazoria County,5 essentially oppose the Houston SIP because they believe some of its control measures are too stringent and will nevertheless fail to attain the NAAQS for ozone. BCCA raises numerous legal challenges to the EPA's approval of Texas's modeling and the State's use of other analytical methods used to demonstrate...

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