472 F.3d 882 (D.C. Cir. 2006), 04-1200, South Coast Air Quality Management Dist. v. E.P.A.

Docket Nº:04-1200, 04-1201.
Citation:472 F.3d 882
Party Name:SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent National Environmental Development Association's Clean Air Regulatory Project, et al., Intervenors.
Case Date:December 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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472 F.3d 882 (D.C. Cir. 2006)




National Environmental Development Association's Clean Air Regulatory Project, et al., Intervenors.

Nos. 04-1200, 04-1201.

United States Court of Appeals, District of Columbia Circuit.

December 22, 2006

Argued October 12, 2006

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On Petitions for Review of a Final Rule of the Environmental Protection Agency

David S. Baron argued the cause for the Environmental petitioners and South Coast Air Quality Management District. With him on the briefs were Howard I. Fox, Ann B. Weeks, Jonathan F. Lewis, Barbara B. Baird, and Adam Babich. Kurt R. Wiese entered an appearance.

William L. Pardee, Assistant Attorney General, Attorney General's Office of Commonwealth of Massachusetts, argued the cause for petitioner Commonwealth of Massachusetts, et al. With him on the briefs were Thomas F. Reilly, Attorney General; Richard Blumenthal, Attorney General, Attorney General's Office of the State of Connecticut, Kimberly Massicotte and Matthew Levine, Assistant Attorneys General; Carl Danbert, Attorney General, Attorney General's Office of the State of Delaware, Valerie S. Csizmadia, Deputy Attorney General; G. Steven Rowe, Attorney General, Attorney General's Office of the State of Maine, Gerald D. Reid, Assistant Attorney General; Robert J. Spagnoletti, Attorney General, Attorney General's Office of the District of Columbia, Todd S. Kim, Solicitor General, Edward S. Schwab, Deputy Attorney General, Donna M. Murasky, Senior Litigation Counsel; Eliot Spitzer, Attorney General, Attorney General's Office of the State of New York, J. Jared Snyder, David A. Munro, and Lisa S. King, Assistant Attorneys General; and Robert A. Reiley, Counsel, Commonwealth of Pennsylvania, Department of Environmental Protection.

John K. McManus, Assistant Attorney General, Attorney General's Office of State of Ohio, argued the cause for petitioner State of Ohio. With him on the briefs was Dale T. Vitale, Assistant Attorney General.

Frank S. Craig, III argued the cause for the Industry petitioners. With him on the briefs were Charles H. Knauss, Robert V. Zener, John B. King, Steven J. Levine, and Patrick O'Hara.

David J. Kaplan, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were John C. Cruden, Assistant Attorney General, Natalia T. Sorgente, Attorney, and

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Jan M. Tierney, Attorney, U.S. Environmental Protection Agency. Eric G. Hostetler, Attorney, U.S. Department of Justice, entered an appearance.

David S. Baron and Howard I. Fox were on the brief of the Environmental intervenors.

Charles H. Knauss, Leslie S. Ritts, Lorane F. Hebert, Norman W. Fichthorn, Lucinda Minton Langworthy, Allison D. Wood, Leslie A. Hulse, Richard S. Wasserstrom, Maurice H. McBride, Ralph J. Colleli, M. Elizabeth Cox, Jan S. Amundson, and Quentin Riegel were on the brief of the Industry intervenors in support of Respondent.

Frank S. Craig, III, John B. King, Geraldine E. Edens, and Frederick R. Anderson were on the brief of amici curiae The Chamber of Greater Baton Rouge, et al. in support of Respondent.

Before: Henderson, Rogers and Brown, Circuit Judges.


Rogers, Circuit Judge.

This case consolidates challenges to the Final Phase 1 Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard, 69 Fed.Reg. 23,951 (Apr. 30, 2004) (codified at 40 C.F.R. parts 40, 51, 81) (hereinafter "2004 Rule"), promulgated by the Environmental Protection Agency pursuant to the Clean Air Act ("CAA" or "the Act"), 42 U.S.C. § 7401 et seq. Because EPA has failed to heed the restrictions on its discretion set forth in the Act, we grant the petitions in part, vacate the rule, and remand the matter to EPA for further proceedings.


The earliest clean air laws date back to the nineteenth century, when industrial cities sought to reduce smoke emissions. See Gary C. Bryner, Blue Skies, Green Politics: The Clean Air Act of 1990 and Its Implementation 98 (2d ed. 1995). It was not until much later that the federal government became involved. The first Clean Air Act was passed in 1963, see Pub. L. No. 88-206, 77 Stat. 392 (1963), but this effort, supplying little more than research funding, bore little resemblance to the comprehensive scheme that Congress would later impose.

The Clear Air Act Amendments of 1970 introduced the now-familiar arrangement of state-federal cooperation. See Clean Air Act Amendments of 1970, Pub.L. No. 91-604, 84 Stat. 1676 (1970). EPA was to prescribe a primary national ambient air quality standard ("NAAQS") for airborne pollutants that was "requisite to protect the public health." Id. § 4(a), 84 Stat. at 1678-80 (codified at 42 U.S.C. § 7409). The NAAQS was to be attained by a state implementation plan ("SIP"), developed by the state and approved by EPA, that introduced sufficient pollution control techniques so as to reach attainment by 1975, with the possibility of a one-time extension of two more years. Id. § 4(a), 84 Stat. at 1680-82 (codified at 42 U.S.C. § 7410 (amended 1977)). This approach, which applied identically to all "criteria" pollutants, proved overly ambitious. Congress amended the Act in 1977, extending the attainment deadlines until December 31, 1987. Pub.L. No. 95-95, § 129(b), 91 Stat. 685, 746-47 (codified at 42 U.S.C. § 7502(a)(2) (amended 1990)).

With the new deadline approaching and penalties looming for states yet to attain, Congress stepped in again. By this time, Congress was considering new approaches to deal with unclean air. See Henry A. Waxman, An Overview of the Clean Air Act Amendments of 1990, 21 Envtl. L. 1721, 1731-33 (1991) (hereinafter "Overview"). The existing approach, which

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specified the ends to be achieved but left broad discretion as to the means, had done little to reduce the dangers of key contaminants. For example, Don Theiler, Director of the Wisconsin Bureau of Air Management, appearing on behalf of two national associations of state-and-local air-control agencies, testified that between August 1987 and February 1989, the number of areas violating the ozone NAAQS had increased, from seventy to ninety, exposing as many as 95 million people to unhealthy levels of ozone. See Clean Air Act Standards: Hearing Before the Subcomm. on Health and the Environment of the H. Comm. on Energy and Commerce, 101st Cong. 30 (1989). In light of such failures, Congress culminated nearly ten years of hearings and debates by enacting the 1990 Amendments to the Act. Pub. L. No. 101-549, 104 Stat. 2399 (November 15, 1990). This version of the Act provides the backdrop for the petitions before the court.

The 1990 Amendments abandoned the discretion-filled approach of two decades prior in favor of more comprehensive regulation of six pollutants that Congress found to be particularly injurious to public health: ozone, carbon monoxide, small particulate matter, sulfur dioxide, nitrogen dioxide, and lead. See CAA §§ 181-192, 42 U.S.C. §§ 7511-7514a. The old ends-driven approach that had proven unsuccessful for these pollutants was redesignated Subpart 1 (of Part D of Title I), which Congress instructed "shall not apply with respect to nonattainment areas for which attainment dates are specifically provided under other provisions of this part." CAA § 172(a)(2)(D), 42 U.S.C. § 7502(a)(2)(D). In place of Subpart 1, Congress enacted Subpart 2 to deal with the specific problem of ozone. See CAA §§ 181-185B, 42 U.S.C. §§ 7511-7511f. Ozone, an essential presence in the atmosphere's stratospheric layer, is dangerous at ground level. There, ozone is formed by the chemical reaction of nitrogen oxides ("NO subx ") with any of a number of volatile organic compounds ("VOCs"), in the presence of sunlight. See West Virginia v. EPA, 362 F.3d 861, 865 (D.C.Cir.2004). Ground-level ozone is a key component of urban smog and exposure to high concentrations "can cause lung dysfunction, coughing, wheezing, shortness of breath, nausea, respiratory infection, and in some cases, permanent scarring of the lung tissue." Overview, supra, at 1758; see S. REP. NO. 101-228, at 6 (1989), reprinted in 5 COMM. ON ENV'T & PUB. WORKS, U.S. SENATE, A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 8338, 8346 (hereinafter "LEGISLATIVE HISTORY").

No longer willing to rely upon EPA's exercise of discretion, Congress adopted a graduated classification scheme that prescribed mandatory controls that each state must incorporate into its SIP. Thus, as of the date of enactment of the 1990 Amendments, areas failing to reach attainment under the NAAQS would become, upon such designation by EPA, subject to Subpart 2 requirements by operation of law. See CAA § 181(a)(1), 42 U.S.C. § 7511(a)(1). Under Subpart 2, each area was to be classified according to its design value--the measured concentration of ground-level ozone. The statutory Table 1 provided that areas were to be classified as Marginal, Moderate, Serious, Severe, or Extreme depending upon how much the design value exceeded the NAAQS at the time of designation. CAA § 181(a) tbl.1, 42 U.S.C. § 7511(a) tbl.1. Areas with greater problems were given more time to attain the NAAQS but a harsher set of mandatory controls, including provisions for demonstrations of reasonable further progress, NO subx control, motor vehicle emissions control, and new source review. See CAA § 182, 42 U.S.C. § 7511a. Areas that failed to meet a deadline were to be reclassified to a higher classification automatically,

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thereby according more time to comply with the NAAQS while subjecting that area to...

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