559 F.3d 512 (D.C. Cir. 2009), 06-1410, American Farm Bureau Federation v. E.P.A.

Docket Nº:06-1410, 06-1411, 06-1415, 06-1416, 06-1417.
Citation:559 F.3d 512
Party Name:AMERICAN FARM BUREAU FEDERATION and National Pork Producers Council, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent American Chemistry Council, et al., Intervenors.
Case Date:February 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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559 F.3d 512 (D.C. Cir. 2009)

AMERICAN FARM BUREAU FEDERATION and National Pork Producers Council, Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent

American Chemistry Council, et al., Intervenors.

Nos. 06-1410, 06-1411, 06-1415, 06-1416, 06-1417.

United States Court of Appeals, District of Columbia Circuit.

February 24, 2009

Argued Sept. 15, 2008.

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On Petitions for Review of an Order of the Environmental Protection Agency. Michael J. Myers, Assistant Attorney General, Attorney General's Office of State of New York, argued the cause for State Petitioners and State Amici. With him on the briefs were Andrew M. Cuomo, Attorney General, Barbara D. Underwood, Solicitor General, and Katherine Kennedy, Assistant Attorney General, Terry Goddard, Attorney General, Attorney General's Office of the State of Arizona, Joseph P. Mikitish, Assistant Attorney General, Edmund G. Brown, Jr., Attorney General, Attorney General's Office of the State of California, Theodora Berger, Senior Assistant Attorney General, Susan L. Durbin, Deputy Attorney General, Richard Blumenthal, Attorney General, Attorney General's Office of the State of Connecticut, Kimberly Massicotte, Assistant Attorney General, Joseph R. Biden, III, Attorney General, Attorney General's Office of the State of Delaware, Valerie S. Csizmadia, Deputy Attorney General, Lisa Madigan, Attorney General, Attorney General's Office of the State of Illinois, Thomas Davis,

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Assistant Attorney General, G. Steven Rowe, Attorney General, Attorney General's Office of the State of Maine, Gerald D. Reid, Assistant Attorney General, Douglas F. Gansler, Attorney General, Attorney General's Office of the State of Maryland, Kathy M. Kinsey, Roberta R. James, and Mary Raivel, Assistant Attorneys General, Martha Coakley, Attorney General, Attorney General's Office for the Commonwealth of Massachusetts, William L. Pardee, Assistant Attorney General, Kelly A. Ayotte, Attorney General, Attorney General's Office of the State of New Hampshire, Maureen D. Smith, Senior Assistant Attorney General, Ann Milgram, Attorney General, Attorney General's Office of the State of New Jersey, Kevin P. Auerbacher and Jung Kim, Deputy Attorneys General, Gary King, Attorney General, Attorney General's Office of the State of New Mexico, Stephen R. Farris, Assistant Attorney General, Tracy M. Hughes, William G. Grantham, and Karen L. Reed, Special Assistant Attorneys General, Hardy Myers, Attorney General, Attorney General's Office of the State of Oregon, Philip Schradle, Special Counsel, Kristen M. Campfield, Associate Counsel, The Commonwealth of Pennsylvania, Department of Environmental Protection, Patrick C. Lynch, Attorney General, Attorney General's Office of the State of Rhode Island, Tricia K. Jedele, Special Assistant Attorney General, William H. Sorrell, Attorney General, Attorney General's Office of State of Vermont, Kevin O. Leske, Assistant Attorney General, Peter J. Nickles, Interim Attorney General, Attorney General's Office of the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Senior Assistant Attorney General, Kurt R. Wiese, District Counsel, South Coast Air Quality Management District, and Barbara Baird, Principal Deputy District Counsel. J. Jared Snyder, Assistant Attorney General, Attorney General's Office of State of New York, and Kristen C. Furlan, Attorney, The Commonwealth of Pennsylvania, Department of Environmental Protection, entered appearances.

Paul R. Cort argued the cause for Environmental Petitioners. With him on the briefs were Erin M. Tobin, Deborah S. Reames, and David S. Baron.

Denise W. Kennedy and Richard E. Schwartz argued the cause for Industry Petitioners. With them on the briefs were Kirsten L. Nathanson, Lawrence E. Volmert, Robert T. Connery, John F. Shepherd, Gary H. Baise, and Julie Anna Potts. John J. Zimmerman entered an appearance.

Hope M. Babcock was on the joint brief for Health Amici.

Norman L. Rave, Jr., and Brian H. Lynk, Attorneys, U.S. Department of Justice, argued the cause for respondent. With them on the brief were John C. Cruden, Deputy Assistant Attorney General, and Steven E. Silverman and John T. Hannon, Attorneys, U.S. Environmental Protection Agency.

F. William Brownell, Allison D. Wood, Lucinda Minton Langworthy, Leslie A. Hulse, Stacy R. Linden, Richard S. Wasserstrom, Robin S. Conrad, and Amar D. Sarwal were on the joint brief of Fine PM Industry Intervenors in support of respondent.

Richard E. Schwartz, Kirsten L. Nathanson, Peter S. Glaser, Robert R. Gasaway, Ashley C. Parrish, Julie Anna Potts, and Harold P. Quinn, Jr., were on the joint Coarse PM NAAQS brief for industry intervenors in support of respondent.

Erin Tobin, Paul Cort, Deborah S. Reames, and David S. Baron were on the brief for intervenors American Lung Association and Environmental Defense.

Thomas J. Ward, Robert R. Gasaway, and Ashley C. Parrish were on the brief of

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amicus curiae National Association of Home Builders in support of respondent. Duane J. Desiderio entered an appearance.

Before: GINSBURG, GARLAND, and GRIFFITH, Circuit Judges.

OPINION

PER CURIAM:

In these consolidated cases, we consider several challenges to the Environmental Protection Agency's most recent revision of the National Ambient Air Quality Standards for particulate matter. Because the agency promulgated standards for fine particulate matter that were, in several respects, contrary to law and unsupported by adequately reasoned decisionmaking, we grant the petitions for review in part and remand those standards to the agency for further proceedings. We deny the petitions for review of the agency's standards for coarse particulate matter because those standards are not arbitrary, capricious, or otherwise contrary to law.

I.

A. Background to the 2006 Rulemaking

Particulate Matter Pollution

This case is about the Environmental Protection Agency's (EPA) regulation of particulate matter (PM), an air pollutant. PM includes " a broad class of chemically and physically diverse substances that exist as discrete particles (liquid droplets or solids) over a wide range of sizes." Final Rule: National Ambient Air Quality Standards for Particulate Matter, 71 Fed.Reg. 61,143, 61,146 (2006). Within this general definition, PM is classified based on factors such as particle size, origin, and chemical composition. The EPA primarily uses particle size to classify PM, distinguishing between " fine PM" and " coarse PM."

Fine and coarse PM differ in ways other than size. Fine PM is produced chiefly by combustion processes and atmospheric reactions of gaseous pollutants; sources include motor vehicles, power generation, and residential fuel burning. Coarse PM tends to result from mechanical processes or the resuspension of dusts in the air; sources include construction and demolition activities as well as agricultural and mining operations. The two types of PM also exhibit different atmospheric behavior: while fine PM can remain suspended for long periods of time and travel great distances, coarse PM tends to deposit rapidly and does not travel as far.

The EPA further notes that " it is appropriate to draw a distinction between two general types of ambient mixes of coarse particles: ‘ urban’ and ‘ non-urban.’ " Id. at 61,185 n. 66. " Urban" coarse " characterizes the mix in more heavily populated urban areas, where sources such as motor vehicles and industry contribute heavily to ambient coarse particle concentrations and composition." Id. In contrast, " non-urban" coarse " encompasses mixes in a variety of other locations outside of urbanized areas, including mixes in rural areas which are likely to be dominated by natural crustal materials." Id. The EPA cautions, however, that this is not a sharp distinction because " some types of sources are present in both urban and non-urban areas." Id.

Studies have demonstrated that both fine and coarse PM can have negative effects on public health and welfare. For example, each is associated with increased mortality (premature death) rates and morbidity (illness) effects such as cardiovascular disease and decreased lung function. Specifically, scientific evidence supports these associations for long- and short-term exposure to fine PM as well as short-term exposure to urban coarse PM. With regard to public welfare, high levels of fine PM in the air can impair visibility,

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while both fine and coarse PM can damage vegetation, disrupt ecosystems, corrode metals, and erode paints and other building materials.

The Clean Air Act

The Clean Air Act (CAA), 42 U.S.C. § § 7401-7671p (2000), a comprehensive statutory scheme designed to reduce air pollution, requires the EPA to set national ambient air quality standards (NAAQS) for air pollutants such as PM. The statute directs the agency to identify air pollutants that " may reasonably be anticipated to endanger public health or welfare." Id. § 7408(a)(1). Once a pollutant is identified, the agency staff develop and issue air quality criteria, collected in a Criteria Document, that " accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air." Id. § 7408(a)(2). Although not required by the statute, in practice EPA staff also develop a Staff Paper, which discusses the information in the Criteria Document that is most relevant to the policy judgments the EPA makes when it sets the NAAQS.

For each pollutant identified, the EPA must propose and promulgate two sets of NAAQS: (1) primary NAAQS, " the attainment and maintenance...

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