489 F.3d 1221 (D.C. Cir. 2007), 06-1023, National Ass'n of Clean Air Agencies v. E.P.A.

Docket Nº:06-1023.
Citation:489 F.3d 1221
Party Name:NATIONAL ASSOCIATION OF CLEAN AIR AGENCIES, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:June 01, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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489 F.3d 1221 (D.C. Cir. 2007)

NATIONAL ASSOCIATION OF CLEAN AIR AGENCIES, Petitioner

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 06-1023.

United States Court of Appeals, District of Columbia Circuit.

June 1, 2007

Argued March 15, 2007

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[Copyrighted Material Omitted]

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On Petition for Review of a Final Action of the Environmental Protection Agency.

Emma E. Garrison argued the cause for petitioner. With her on the briefs was Hope M. Babcock.

Steven E. Rusak, Attorney, United States Department of Justice, argued the cause for respondent. With him on the brief were John C. Cruden, Deputy Assistant Attorney General, and Michael W. Thrift, Counsel, U.S. Environmental Protection Agency.

David A. Berg, Mac S. Dunaway, and Thomas Richichi were on the brief for amici curiae Air Transport Association of America, Inc. and Aerospace Industries Association in support of respondent.

Before: Griffith, Circuit Judge , and Edwards and Williams, Senior Circuit Judges.

OPINION

Edwards, Senior Circuit Judge

The Environmental Protection Agency ("EPA") issued a final rule increasing the stringency of the oxides of nitrogen ("NO subx ") emission standards applicable to newly certified commercial aircraft gas

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turbine engines under § 231 of the Clean Air Act ("CAA" or "Act"), 42 U.S.C. § 7571. See Control of Air Pollution From

Aircraft and Aircraft Engines; Emission Standards and Test Procedures, 70 Fed.Reg. 69,664 (Nov. 17, 2005) ("Final Rule"). Arguing that the Final Rule did not go far enough, the National Association of Clean Air Agencies ("NACAA"), a national trade association that represents state and local governmental agencies responsible for achieving and sustaining clean air, petitions for review. Specifically, NACAA argues that EPA's interpretation of the Act--that § 231 does not require the agency to subordinate all other concerns to emissions reduction and reach a "technology-forcing" result--constitutes an impermissible construction of the Act. Petitioner also argues that the Final Rule is arbitrary and capricious because it relies upon an insufficient time rationale, fails to establish a firm timeline for tightening standards in the future, considers safety concerns with little explanation, and departs from EPA's practice of setting production cut-off dates. EPA defends the Final Rule and argues that NACAA lacks standing to challenge it.

Although we conclude that NACAA has standing, we find no merit in the petition for review. We hold that EPA's interpretation of § 231 is not manifestly contrary to the CAA and that the agency did not otherwise act arbitrarily and capriciously in promulgating the Final Rule. Most of the arbitrary and capricious claims raised by NACAA are not properly before the court, because they were never raised with EPA. NACAA's preserved claim that the Final Rule departs from EPA's practice of setting production cut-off dates lacks merit because the Final Rule provides a reasoned explanation for the agency's change in course. Because we find that none of NACAA's claims are meritorious, we deny the petition for review in all respects.

I. Background

The Clean Air Act establishes "a joint state and federal program for regulating the nation's air quality." Envtl. Def. v. EPA, 467 F.3d 1329, 1331 (D.C.Cir.2006) (internal quotation marks omitted). The CAA requires EPA to promulgate, review, and revise National Ambient Air Quality Standards ("NAAQS"), specifying maximum levels of certain air pollutants in the ambient air. See 42 U.S.C. § 7409. "States, in turn, are required to adopt State Implementation Plans ('SIPs') that 'provide[] for implementation, maintenance, and enforcement of [NAAQS] ....' " Envtl. Def., 467 F.3d at 1331 (quoting 42 U.S.C. § 7410(a)(1)). "States that fail to comply with th[is] requirement[] are subject to various sanctions ...." Appalachian

Power Co. v. EPA, 249 F.3d 1032, 1037 (D.C.Cir.2001) (per curiam) (citing 42 U.S.C. § 7509).

Section 231 of the CAA requires the Administrator of EPA to study and investigate emissions of air pollutants from aircraft, considering such emissions' effect on air quality and the "technological feasibility" of controlling them. 42 U.S.C. § 7571(a). The Administrator shall then, "from time to time, issue proposed ... standards applicable to the emission of any air pollutant from ... aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare." Id. § 7571(a)(2)(A). After holding public hearings, the Administrator must "issue such regulations with such modifications as he deems appropriate." Id. § 7571(a)(3). Section 231 also authorizes the Administrator to revise such regulations "from time to time," but mandates that he "not change the ... standards if such change would significantly increase

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noise and adversely affect safety." Id. § 7571(a)(2)(B), (a)(3); see also id. § 7571(c) (establishing additional procedure focused on aircraft safety). Furthermore, "[a]ny regulation prescribed under [§ 231] ... shall take effect after such period as the Administrator finds necessary ... to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period." Id. § 7571(b). This power to set standards resides in EPA alone: "No State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof unless such standard is identical to [the federal] standard." Id. § 7573.

EPA does not regulate on a blank slate. "[B]y virtue of being a party to" the Chicago Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295, the United States is a member of the United Nations International Civil Aviation Organization ("ICAO"). Wardair Canada Inc. v. Fla. Dep't of Revenue, 477 U.S. 1, 9-10, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986). "As long as a participating nation ... adopts [domestic] aircraft emission standards that are equal to or more stringent than ICAO's [environmental] standards," aircraft belonging to that nation "are permitted to travel through the airspace of other countries without any restriction." Final Rule, 70 Fed.Reg. at 69,667. But any one of the approximately 190 contracting nations "can ban use within its airspace of any aircraft that does not meet ICAO standards." Id. In 1981, ICAO first adopted standards governing emissions of NO subx, a precursor to the formation of ozone and cause of acid rain, eutrophication, plant damage, and visibility impairment. Id. at 69,667-68, 69,672-73. In 1993, ICAO approved a proposal to tighten the 1981 ICAO standards by 20%. See id. at 69,667. EPA altered its regulations to adopt the 1993 ICAO standards in 1997. Id. ICAO approved an additional 16% NO subx reduction in 1999. Id.

On September 30, 2003, approximately three months before the 1999 ICAO standards were set to take effect, EPA published a notice of proposed rulemaking declaring its intent to "adopt standards equivalent to the [1999] NO subx standards of [ICAO], and thereby bring the United States emission standards into alignment with the internationally adopted standards." See Control of Air Pollution From Aircraft and Aircraft Engines; Emission Standards and Test Procedures, 68 Fed.Reg. 56,226, 56,226 (Sept. 30, 2003) ("NPRM"). After EPA held a public hearing on the NPRM and after the close of the written comment period, ICAO again lowered permissible NO subx emissions, this time by approximately 12%, and slated the new standards to take effect after December 31, 2007. Final Rule, 70 Fed.Reg. at 69,677. The Final Rule, issued in November 2005, amends EPA regulations to reflect the 1999 ICAO standards (a 16% reduction from the previous EPA standards), not the more stringent reduction approved by ICAO during the pendency of the rulemaking. Id. at 69,667, 69,677.

The Final Rule recognizes that the new standards "will not impose any additional burden on manufacturers," because "94 percent of all engine models currently in production already meet the [1999 ICAO] standards." Id. at 69,675. The Final Rule also acknowledges ICAO's 2005 standards and...

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