American Farm Bureau Federation v. E.P.A., 06-1410.
| Decision Date | 24 February 2009 |
| Docket Number | No. 06-1410.,No. 06-1416.,No. 06-1415,,No. 06-1417.,No. 06-1411.,06-1410.,06-1411.,06-1415,,06-1416.,06-1417. |
| Citation | 559 F.3d 512 |
| Parties | AMERICAN FARM BUREAU FEDERATION and National Pork Producers Council, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent American Chemistry Council, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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
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 for the Court filed 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.
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 while both fine and coarse PM can damage vegetation, disrupt ecosystems, corrode metals, and erode paints and other building materials.
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 of which in the judgment of the Administrator, based on [the air quality criteria] and allowing an adequate margin of safety, are requisite to protect the public health," id. § 7409(b)(1) (emphasis added); and (2) secondary NAAQS specifying a level of air quality "the attainment...
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