South Coast Air Quality Management Dist. v. E.P.A.

Decision Date08 June 2007
Docket NumberNo. 04-1201.,No. 04-1200.,04-1200.,04-1201.
Citation489 F.3d 1245
PartiesSOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent National Environmental Development Association's Clean Air Regulatory Project, et al., Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Office of the State of Connecticut, Kimberly Massicotte and Matthew Levine, Assistant Attorneys General, Joseph R. Biden, III, 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, Andrew M. Cuomo, Attorney General, Attorney General's Office of the State of New York, Barbara Underwood, Solicitor General, David A. Munro and Lisa S. Kwong, Assistant Attorneys General, Robert A. Reiley, Counsel, Commonwealth of Pennsylvania, Department of Environmental Protection, Linda Singer, Attorney General, Attorney General's Office of the District of Columbia, Todd S. Kim, Solicitor General, Edward S. Schwab, Deputy Solicitor General, and Donna M. Murasky, Senior Litigation Counsel, were on the response of petitioner Commonwealth of Massachusetts, et al., to the petition for rehearing filed by the Environmental Protection Agency.

Charles H. Knauss, Robert V. Zener, and Robert S. Taylor were on the petition for rehearing filed by the Industry Petitioners.

Norman W. Fichthorn and Lucinda Minton Langworthy were on the petition for rehearing filed by Intervenor-Respondents American Chemistry Council, et al.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

ROGERS, Circuit Judge.

Before the court are five petitions for rehearing1 with regard to the vacatur and remand of a final rule implementing the eight-hour national ambient air quality standard ("NAAQS") for ozone under the Clean Air Act ("the CAA"), 42 U.S.C. § 7401 et seq. See Final Phase 1 Rule To Implement the 8-Hour Ozone NAAQS, 69 Fed.Reg. 23,951 (Apr. 30, 2004) (codified at 40 C.F.R. parts 40, 51, 81) ("2004 Rule"). The petitions overlap in part, challenging principally the court's interpretation of the statutory gap, described in Whitman v. American Trucking Ass'ns, 531 U.S. 457, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001), that arises from the decision of the Environmental Protection Agency ("EPA") to change from a one-hour to an eight-hour measurement system for ozone, and the court's construction of the CAA's anti-backsliding provision. See S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C.Cir.2006). None of these challenges has merit and we deny the petitions. However, we grant the joint request of EPA and the Environmental Petitioners to clarify the description of the required conformity determinations and to modify the scope of the vacatur of the 2004 Rule.

I.

In Whitman, the Supreme Court acknowledged that Subpart 2 of the CAA "unquestionably" provides for classifying nonattainment ozone areas even after EPA changed the system for measuring ozone levels from the highest annual one-hour average concentration to the fourth-highest annual eight-hour average concentration. 531 U.S. at 482, 121 S.Ct. 903. However, because Congress had defined the classification system in 1990 in terms of one-hour ozone, there were several limited gaps in the CAA. See id. at 484, 121 S.Ct. 903. This court concluded that EPA had misconstrued the extent of the gaps to exercise its interpretative discretion more broadly than the Supreme Court had authorized. See S. Coast Air Quality Mgmt. Dist., 472 F.3d at 892-94. In its petition for rehearing, EPA disagrees with our interpretation of the following passage in Whitman:

[T]o the extent that the new ozone standard is stricter than the old one, see 62 Fed.Reg. 38856, 38858 (1997) (8-hour standard of 0.09 ppm rather than 0.08 ppm would have "generally represent[ed] the continuation of the [old] level of protection"), the classification system of Subpart 2 contains a gap, because it fails to classify areas whose ozone levels are greater than the new standard (and thus nonattaining) but less than the approximation of the old standard codified by Table 1.

531 U.S. at 483, 121 S.Ct. 903 (citation omitted). EPA maintains that "the approximation of the old standard codified by Table 1" does not refer to the previous citation, which repeats EPA's assertion in the 1997 Rule that 0.09 ppm under the eight-hour measurement scheme is roughly equivalent to the old standard of 0.12 ppm of one-hour ozone. Instead, according to EPA, the "approximation" being referenced is 0.121 ppm of one-hour ozone, the lowest nonattaining design value in Table 1. See EPA Pet'n at 4.

EPA's interpretation is irreconcilable with the CAA and Whitman. First, every other ozone level referenced in the sentence is in eight-hour terms and there is no signal that the final ozone level (the "approximation") used a different metric. Second, 0.121 is not an "approximation" of 0.12, because an approximation is typically less precise than the true value. Here, Congress started the statutory Table 1 with the value 0.121 because it is the smallest design value that qualifies as nonattaining. An area with a design value of precisely 0.12 would "meet[]" the NAAQS under section 107 of the CAA, 42 U.S.C. § 7407. Third, nowhere in Whitman does the Supreme Court signal that "the approximation of the old standard" is shorthand for 0.121 ppm of one-hour ozone.

EPA also maintains that there can be no eight-hour approximation of the one-hour ozone level because there is no one-to-one correspondence between the two metrics. EPA Pet'n at 5-6. But the lack of a precise equivalence is precisely why an approximation is necessary. The approximation referenced by the court, 0.09 ppm, is not, as EPA suggests, an arbitrary expression of the court's scientific prowess; as acknowledged by the Supreme Court, the approximation comes directly from the rulemaking record, which stated that 0.09 ppm of eight-hour ozone "generally represent[ed] the continuation of the [old] level of protection." See 1997 Rule, 62 Fed. Reg. at 38,858. In short, there is every reason to believe that the gap intended by Whitman is the gap described by the court in South Coast Air Quality Management District, 472 F.3d at 892-93.

EPA next objects to the court's failure to defer, under Chevron Step 2, to EPA's application of Subpart 1 to gap areas. The court merely recognized that under Chevron agency action that does not constitute a reasonable interpretation of the statute must be vacated. See id. at 894. Because Congress sought to reduce EPA discretion by enacting Subpart 2 as part of the 1990 amendments to the CAA, EPA could not reasonably rely upon its preference for regulatory flexibility in setting the boundary between Subpart 1 and Subpart 2. EPA's claim that the court nullified the discretion recognized by the Supreme Court in Whitman is meritless. See Whitman, 531 U.S. at...

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