559 F.3d 561 (D.C. Cir. 2009), 07-1151, National Resources Defense Council v. E.P.A.

Docket Nº:07-1151, 08-1057.
Citation:559 F.3d 561
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. American Farm Bureau Federation, et al., Intervenors.
Case Date:March 20, 2009
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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559 F.3d 561 (D.C. Cir. 2009)




American Farm Bureau Federation, et al., Intervenors.

Nos. 07-1151, 08-1057.

United States Court of Appeals, District of Columbia Circuit.

March 20, 2009

Argued Oct. 8, 2008.

On Petitions for Review of Final Actions of the Environmental Protection Agency.Colin C. O'Brien argued the cause for petitioner. With him on the briefs was John Walke.

Joshua M. Levin, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was

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John C. Cruden, Deputy Assistant Attorney General.

Peter S. Glaser argued the cause for intervenor. With him on the brief were Norman W. Fichthorn, Julie Anna Potts, and Harold P. Quinn Jr.Richard E. Schwartz entered an appearance.

Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.


RANDOLPH, Circuit Judge:

State authorities submit air pollution emissions data to the Environmental Protection Agency. EPA monitors the data in order to evaluate regional compliance with national air pollution standards. In 2007, EPA promulgated a regulation governing the exclusion of emissions data during " exceptional events" such as natural disasters. The Natural Resources Defense Council (NRDC) brought petitions for review, seeking to set aside the rule's definition of " natural events" and to vacate several statements in the preamble to the rule concerning types of events that may qualify as " exceptional."


The Clean Air Act commands EPA to promulgate national air quality standards for certain air pollutants. States develop and implement plans to comply with EPA's air quality standards. 42 U.S.C. § § 7408-7410. The states have established a network of air quality monitoring stations to measure regional compliance with EPA's national standards. Based on this data, EPA designates areas as being in either " attainment" or " nonattainment" and imposes more rigorous pollution control measures in " nonattainment" areas. See 42 U.S.C. § § 7407(d), 7502.

In 2005, Congress amended the Clean Air Act to require EPA to promulgate regulations governing air quality monitoring during " exceptional events." See 42 U.S.C. § 7619(b). The amended statute defined " exceptional event" as an event that " (i) affects air quality; (ii) is not reasonably controllable or preventable; (iii) is an event caused by human activity that is unlikely to recur at a particular location or a natural event; and (iv) is determined by the Administrator ... to be an exceptional event." Id. § 7619(b)(1)(A). EPA published a final exceptional events rule, accompanied by a lengthy preamble, in March 2007. Treatment of Data Influenced by Exceptional Events, 72 Fed.Reg. 13,560 (Mar. 22, 2007) (codified at 40 C.F.R. § § 50.1, 50.14, 51.930). The final rule's definition of " exceptional events," codified at 40 C.F.R. § 50.1(j), repeated the statutory language. In the next subsection, the rule defined " natural event" -as used in 42 U.S.C. § 7619(b)(1)(A)(iii)-as " an event in which human activity plays little or no direct causal role." 40 C.F.R. § 50.1(k). The rule also provided that states may " flag" anomalous data caused by exceptional events, and that EPA will then review the flagged data and determine whether to exclude it from the set of data used in reviewing compliance with its air quality standards. 40 C.F.R. § 50.14.

NRDC argues against EPA's definition of " natural event," against its description in the rule's preamble of a " final rule concerning high wind events," and against its list, again in the preamble, of examples of potentially exceptional events.


NRDC's complaint is that EPA should not have defined " natural event" in 40 C.F.R. § 50.1(k) to include events in

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which human activities play " little" causal role. As NRDC sees it, a " natural event" within the meaning of § 7619 is something that occurs without the slightest human influence. EPA says this objection was never raised during the rulemaking and is therefore barred.

Section 307 of the Clean Air Act states: " Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review." 42 U.S.C. § 7607(d)(7)(B). Similar provisions are common with respect to other agencies. See Wash. Ass'n for Television & Children v. FCC, 712 F.2d 677, 682 n. 6 (D.C.Cir.1983). Their purpose is to ensure that the agency and other interested persons have been alerted to the commenter's objection to the proposed rule. The agency then may correct or modify the rule it proposed or explain why it disagrees with the objection. See Motor & Equip. Mfrs. Ass'n v. Nichols, 142 F.3d 449, 462 (D.C.Cir.1998). Other parties also may contribute to the agency's deliberations by endorsing or opposing the objection and by providing information and arguments in support of their position.

NRDC thinks the following portion of its nine-page, single spaced letter to EPA constituted an objection to EPA's proposed definition of " natural event" :

Under no circumstance can the clean-up associated with a natural disaster itself be considered a " natural event." EPA's suggestion to the contrary flies in the face of the plain statutory language. The statute clearly and explicitly distinguishes between " natural event[s]" (events that do not have a human origin) and " events caused by human activity." A natural event is one that is not the result of human activity ... While the level of human activity that discharges pollutants may increase in the wake of a natural disaster, emissions from clean-up activities (such as debris burning, operation of diesel equipment, and demolition activities) are clearly events caused by human activity, and may not be classified as " exceptional events" unless they meet each of the requirements of section 319 for qualifying anthropogenic events.

In short, the activities themselves that are responsible for the emissions (and possible violations of the NAAQS) are of human origin, and by definition not natural events. The fact that a natural event precipitates the need for human activity cannot and does not transform the human activity itself into a natural event. Thus, the Act clearly precludes EPA from identifying emissions from clean-up activities as " natural events" that qualify as exceptional events.

NRDC Comments, at 4-5.

Given the context, no EPA official would have guessed that NRDC was complaining about the agency's proposed definition of " natural event." Those familiar with the proceedings would have taken NRDC's remarks as a criticism of the one sentence in the notice of proposed rulemaking dealing with clean-up activities after a...

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