467 F.3d 1329 (D.C. Cir. 2006), 04-1291, Environmental Defense v. E.P.A.

Docket Nº:04-1291.
Citation:467 F.3d 1329
Party Name:ENVIRONMENTAL DEFENSE, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator, Environmental Protection Agency, Respondents.
Case Date:October 20, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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467 F.3d 1329 (D.C. Cir. 2006)

ENVIRONMENTAL DEFENSE, et al., Petitioners


ENVIRONMENTAL PROTECTION AGENCY and Stephen L. Johnson, Administrator, Environmental Protection Agency, Respondents.

No. 04-1291.

United States Court of Appeals, District of Columbia Circuit.

October 20, 2006

Argued December 1, 2005

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

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Robert E. Yuhnke argued the cause and filed the briefs for petitioners.

Natalia T. Sorgente, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were John C. Cruden, Deputy Assistant Attorney General, and Sara Schneeberg, Attorney, U.S. Environmental Protection Agency.

Before: RANDOLPH, TATEL and GRIFFITH, Circuit Judges.


GRIFFITH, Circuit Judge:

In this petition for review, Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, and Transportation Solutions Defense and Education Fund ("petitioners") challenge three sets of regulations promulgated by the Environmental Protection Agency ("EPA") governing how states are to bring their transportation plans into conformity with the requirements of the Clean Air Act (the "Act"). 42 U.S.C. § 7401 et seq. One set of regulations, which appears at 40 C.F.R. § 93.118(b), (d), and (e)(6), was issued in 1997 and not addressed in the 2004 rulemaking under review.1 We do not have jurisdiction to review petitioners' challenge to this set of regulations because the statutory period for judicial review has long since passed. We grant the petition with respect to 40 C.F.R. § 93.109(e)(2)(v), because it is inconsistent with the Act's requirement that activities that emit pollutants comply with an approved transportation implementation plan. Finally, we deny petitioners' challenge to 40 C.F.R. § 93.119(b)(2), (d), and (e), because the Act does not require that activities involving transportation actually reduce pollutants,

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but merely that they not frustrate an implementation plan's purpose to reduce overall emissions.


In enacting the Clean Air Act, Congress found "that air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments." 42 U.S.C. § 7401(a)(3). Accordingly, the Act seeks "to encourage and assist the development and operation of regional air pollution prevention and control programs." Id.§ 7401(b)(4). It does so by "establish[ing] a joint state and federal program for regulating the nation's air quality." Envtl. Def. Fund v. EPA, 167 F.3d 641, 643 (D.C. Cir. 1999). At the federal level, the Act requires EPA to promulgate National Ambient Air Quality Standards ("NAAQS"), which seek to promote and maintain public health by establishing maximum limits for various air pollutants. See 42 U.S.C. § 7409. As it determines what is necessary to protect the public health, EPA may revise existing NAAQS or promulgate NAAQS for new pollutants, thus creating new limits which states must subsequently work to meet. See id.§ 7409.

States, in turn, are required to adopt State Implementation Plans ("SIPs") that "provide[] for implementation, maintenance, and enforcement of [NAAQS] in each air quality region." Id.§ 7410(a)(1); see also id.§ 7407(a) (requiring each state to submit a SIP for each air quality control region within its borders). SIPs, which are sometimes also referred to in the statutes and regulations as "implementation plans," chart a course for reducing pollutant emissions by requiring states to "include enforceable emission limitations and other control measures, means, or techniques . . ., as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements" of the Act. Id.§ 7410(a)(2)(A). Though created by the states, SIPs do not take effect until approved by EPA. See id.§ 7506(c)(1).

As we have previously described, "[i]n 1977, Congress amended the Clean Air Act to ensure that transportation planning at the local level conforms to pollution controls contained in approved SIPs." Envtl. Def. Fund v. EPA, 167 F.3d at 643. "[B]ecause federal agencies 'largely ignored' " the 1977 amendments, Congress amended the Act again in 1990 to expand the content and scope of the conformity requirements. Id. at 643 (quoting Clean Air Conference Report, 136 Cong. Rec. 36,103, 36,105-06 (1990)) (ellipsis omitted). Thus, today, after a SIP is approved by EPA and is in force in an area, no department of the federal government may

engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform [to the SIP] .... Conformity to an implementation plan means--:

(A) conformity to an implementation plan's purpose of eliminating or reducing the severity and number of violations of the national ambient air quality standards and achieving expeditious attainment of such standards; and

(B) that [transportation] activities will not—

(i) cause or contribute to any new violation of any standard in any area;

(ii) increase the frequency or severity of any existing violation of any standard in any area; or

(iii) delay timely attainment of any standard or any required interim emission

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reductions or other milestones in any area.

42 U.S.C. § 7506(c)(1) (emphasis added). This definition of conformity and EPA's attempts to promulgate regulations implementing it have been before this Court several times. See, e.g., Envtl. Def. Fund v. EPA, 82 F.3d 451, 454 (D.C. Cir. 1996) ("EDF I"); Envtl. Def. Fund v. EPA, 167 F.3d at 643 ("EDF II"); Sierra Club v. EPA, 129 F.3d 137, 138 (D.C. Cir. 1997).

Petitioners in this case challenge three sets of EPA regulations that implement this statutory conformity provision with respect to a specific transportation planning process required by the Urban Mass Transportation Act. "Under the Urban Mass Transportation Act, the governor of each state, in agreement with local officials, must designate a metropolitan planning organization (known as an 'MPO') for each urban area with more than 50,000 people." EDF II, 167 F.3d at 644 (citing 49 U.S.C. § 5303(c)(1)). As we have explained,

[t]he MPO plans for the transportation needs of that area. It develops a long range transportation plan . . . which specifies the facilities, services, financing techniques, and management policies that will comprise the area's transportation system over a 20-year period, see id.§ 5303(f), as well as a short-term transportation improvement program . . . which identifies and prioritizes the specific transportation projects to be carried out over the next three years, see id.§ 5304(b).

EDF II, 167 F.3d at 644.

The Clean Air Act's 1990 conformity requirements give SIPs, once in effect, added bite by requiring that "[n]o [MPO] . . . shall give its approval to any project, program, or plan which does not conform to an implementation plan approved or promulgated under section 7410 of this title," and by conditioning federal approval upon conformance to a SIP. 42 U.S.C. § 7506(c)(1) (emphasis added).


The judicial review provision of the Clean Air Act provides that

a petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard . . . or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia.

* * * * * *

Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register ....

42 U.S.C. § 7607(b)(1) (emphasis added). EPA published the final rule at issue here on July 1, 2004 (the "2004 Rule"), and petitioners filed a petition for review within sixty days.

In their brief, petitioners challenge three of EPA's regulations in the 2004 Rule: 40 C.F.R. § 93.109(e)(2)(v); 40 C.F.R. § 93.119(b)(2), (d), and (e); and 40 C.F.R. § 93.118(b), (d), and (e)(6). With respect to the first two regulations, EPA concedes, and we agree, that petitioners have made a timely challenge to new regulations first announced in the final rule. There is no dispute that we thus have jurisdiction pursuant to 42 U.S.C. § 7607(b)(1) to hear the challenge to 40 C.F.R. § 93.109(e)(2)(v) and 40 C.F.R. § 93.119(b)(2), (d), and (e), and we will discuss the merits of those challenges shortly. But a jurisdictional issue has been raised with respect to the third regulation petitioners challenge, 40 C.F.R. § 93.118(b), (d), and (e)(6),

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and we discuss that first. Parts of this regulation were promulgated in 1993, parts in 1997; but none of it originated in the 2004 rulemaking now under review. See Criteria and Procedures for Determining Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act, 58 Fed.Reg. 3768, 3783 (Jan. 11, 1993); Transportation Conformity Rule Amendments: Flexibility and Streamlining, 62 Fed.Reg. 43780, 43810-12 (Aug. 15, 1997) (the "1997 regulation"). Petitioners did not file this petition for review within sixty days of the promulgation of this regulation. Thus, EPA contends we are without jurisdiction to hear petitioners' belated challenge to it.

The 2004 Rule made only minor changes to the 1997 regulation, which petitioners do not challenge. Instead, they seek review of the 1997 regulation itself, which they cannot now do. Petitioners...

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