571 F.3d 20 (D.C. Cir. 2009), 05-1064, Catawba County, North Carolina v. E.P.A.

Docket Nº:05-1064, 05-1065, 05-1067, 05-1068, 05-1069, 05-1071, 05-1072, 05-1073, 05-1075, 05-1076, 05-1077, 05-1078, 05-1184, 05-1190, 05-1196, 05-1200, 05-1202, 06-1049, 06-1052, 06-1083, 06-1088, 06-1102, 06-1172, 07-1412, 07-1417, 07-1418, 07-1428, 07-1465, 07-1467, 07-1530.
Citation:571 F.3d 20
Opinion Judge:PER CURIAM:
Party Name:CATAWBA COUNTY, NORTH CAROLINA, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Sierra Club, Intervenor.
Attorney:Marc D. Machlin argued the cause and filed the briefs for petitioner Oakland County, MI. Louis E. Tosi argued the cause for Industry Petitioners. With him on the briefs were Paul E. Gutermann, Charles L. Franklin, Douglas A. McWilliams, Allen A. Kacenjar, Michael E. Born, Cheri Ann Budzynski, Gal...
Judge Panel:Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
Case Date:July 07, 2009
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 20

571 F.3d 20 (D.C. Cir. 2009)

CATAWBA COUNTY, NORTH CAROLINA, et al., Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent

Sierra Club, Intervenor.

Nos. 05-1064, 05-1065, 05-1067, 05-1068, 05-1069, 05-1071, 05-1072, 05-1073, 05-1075, 05-1076, 05-1077, 05-1078, 05-1184, 05-1190, 05-1196, 05-1200, 05-1202, 06-1049, 06-1052, 06-1083, 06-1088, 06-1102, 06-1172, 07-1412, 07-1417, 07-1418, 07-1428, 07-1465, 07-1467, 07-1530.

United States Court of Appeals, District of Columbia Circuit.

July 7, 2009

Argued April 6, 2009.

Page 21

[Copyrighted Material Omitted]

Page 22

[Copyrighted Material Omitted]

Page 23

[Copyrighted Material Omitted]

Page 24

[Copyrighted Material Omitted]

Page 25

Marc D. Machlin argued the cause and filed the briefs for petitioner Oakland County, MI.

Louis E. Tosi argued the cause for Industry Petitioners. With him on the briefs were Paul E. Gutermann, Charles L. Franklin, Douglas A. McWilliams, Allen A. Kacenjar, Michael E. Born, Cheri Ann Budzynski, Gale Lea Rubrecht, Kathy G. Beckett, David M. Flannery, and Edward L. Kropp.

Andrew M. Cuomo, Attorney General, Attorney General's Office of the State of New York, Michael J. Myers and Jacob Hollinger, Assistant Attorney Generals, Mark Rudolph, Senior Counsel, Office of Legal Services, West Virginia, Steve Carter, Attorney General, Attorney General's Office of the State of Indiana, Steve D. Griffin and Valerie Tachtiris, Deputy Attorneys General, and Thomas M. Fisher, Special Counsel, were on the briefs of State Petitioners.

Karma Barsam Brown, Phillip L. Conner, Ronald E. Cardwell, Ethan R. Ware, George William House, S. Kyle Woosley, and Lewis S. Wiener were on the briefs for County Petitioners.

Laurel A. Bedig and Monica Derbes Gibson, Attorneys, and Jon M. Lipshultz, Senior Counsel, U.S. Department of Justice, argued the cause for respondent. With them on the brief were John C. Cruden, Deputy Assistant Attorney General, Jessica O'Donnell, Attorney, and Geoffrey L. Wilcox, Counsel, U.S. Environmental Protection Agency. Kenneth C. Amaditz, Attorney, U.S. Department of Justice, entered an appearance.

David S. Baron and Jennifer C. Chavez were on the brief for intervenor. Howard I. Fox entered an appearance.

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

OPINION

PER CURIAM:

In these consolidated petitions, several states, counties, and industrial entities challenge the Environmental Protection Agency's promulgation of area designations for the annual national ambient air quality standard applicable to fine particulate matter, a category of air pollutants consisting of miniscule airborne particles known to present adverse health risks. Insisting that EPA's methodology for designating areas as " nonattainment" for the fine particulate matter standard violates section 107(d) of the Clean Air Act, which governs such designations, and that this methodology and the individual designations it produced are otherwise arbitrary and capricious, petitioners ask us to vacate the nonattainment designations and to send EPA back to the drawing board. With one minor exception, we deny the petitions for review. Faced with the complex task of identifying those geographic areas that contribute to fine particulate matter pollution, EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied-indeed, quite often surpassed-its basic obligation of reasoned decisionmaking.

I.

Title I of the Clean Air Act charges EPA with formulating national ambient air

Page 26

quality standards (NAAQS) for air pollutants that may reasonably be anticipated to endanger public health and welfare. 42 U.S.C. § § 7408-09. NAAQS set maximum ambient air concentrations for those pollutants. Id. While each state has " primary responsibility for assuring air quality" within its borders and, in particular, for developing a state implementation plan (SIP) for achieving and maintaining the NAAQS for each air pollutant, 42 U.S.C. § 7407(a), the Act triggers more or less stringent requirements depending on the quality of an area's ambient air. Thus, before a state can design an appropriate SIP, it must know which areas within its boundaries comply with the NAAQS and which do not.

This is where CAA section 107(d) comes in. It requires EPA to designate areas as " attainment," " nonattainment," or " unclassifiable" depending on their compliance with the relevant NAAQS. " Attainment" areas are those that meet the relevant standard; " nonattainment" areas are those that exceed the standard or that " contribute[ ] to ambient air quality in a nearby area" that exceeds the standard; " unclassifiable" areas are those that permit no determination given existing data. § 7407(d)(1)(A)(i)-(iii). In nonattainment areas, the Act requires stricter pollution controls. For instance, states must implement controls that will achieve attainment " as expeditiously as practicable" in nonattainment areas, id. § 7502(a), (c)(1), whereas states need only implement measures that will prevent " significant deterioration of air quality" for attainment and unclassifiable areas, id. § 7471.

In addition to setting the criteria for attainment and nonattainment, section 107(d)(1) prescribes the designation process. Upon promulgation of new or revised NAAQS, states must submit to EPA their own " initial designations" of all areas within their borders. § 7407(d)(1)(A). EPA must then promulgate the submitted designations or modify them as it deems necessary. § 7407(d)(1)(B). Specifically, CAA section 107(d)(1)(B)(ii) provides that:

In making the promulgations required ..., the Administrator may make such modifications as the Administrator deems necessary to the designations of the areas (or portions thereof) submitted [by the states] under subparagraph (A) (including to the boundaries of such areas or portions thereof). Whenever the Administrator intends to make a modification, the Administrator shall notify the State and provide such State with an opportunity to demonstrate why any proposed modification is inappropriate. The Administrator shall give such notification no later than 120 days before the date the Administrator promulgates the designation, including any modification thereto.

§ 7407(d)(1)(B)(ii).

This case involves the NAAQS for fine particulate matter. Known as PM2.5, fine particulate matter consists of airborne particles that are 2.5 micrometers in diameter or smaller-i.e., less than one-thirtieth the thickness of a human hair. Air Quality Designations and Classifications for the Fine Particles (PM2.5) National Ambient Air Quality Standards (" PM 2.5 Designations Rule " ), 70 Fed.Reg. 944, 945 (Jan. 5, 2005) (codified at 40 C.F.R. pt. 81). A " significant association" links elevated levels of PM2.5 with adverse human health consequences such as premature death, lung and cardiovascular disease, and asthma. Id. And significantly for the primary issue before us-EPA's method for identifying the geographic origins of elevated ambient PM2.5 concentrations-PM2.5 can travel hundreds or thousands of miles.

In 1997, EPA abandoned its practice of regulating all particulate matter, both

Page 27

coarse and fine, under a unified standard. Instead it established specific PM2.5 NAAQS for the first time. National Ambient Air Quality Standards for Particulate Matter, 62 Fed.Reg. 38,652 (July 18, 1997). EPA promulgated annual and 24-hour PM2.5 NAAQS, setting the annual standard-the one at issue here-at 15 micrograms per cubic meter. Id. at 38,677; see also 40 C.F.R. § 50.7. Although section 107(d) required EPA to promulgate area designations for the new standard " as expeditiously as possible," § 7407(d)(1)(B)(i), litigation here and in the Supreme Court waylaid the designation process until we finally upheld the standard five years later. See Am. Trucking Ass'ns v. EPA, 283 F.3d 355 (D.C.Cir.2002), on remand from Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001), aff'g in part and rev'g in part Am. Trucking Ass'ns v. EPA, 175 F.3d 1027 (D.C.Cir.1999). In the meantime, Congress had passed legislation requiring the deployment of a nationwide PM2.5 monitoring network and extending the deadline for the designations until three years of monitoring data had been collected. See Transportation Equity Act for the 21st Century (" TEA-21" ), Pub.L. No. 105-178, § § 6101-02, 112 Stat. 107, 463-65 (1998). Then, following our decision upholding the PM2.5 NAAQS and EPA's initiation of the designation process, Congress amended the Clean Air Act to add section 107(d)(6), which set a firm deadline for the PM2.5 area designations. See Pub.L. No. 108-199, § 425(a), 118 Stat. 3, 417 (2004) (codified at § 7407(d)(6)). Thus, amended section 107(d)(6)(A) now provides:

Notwithstanding any other provision of law, not later than February 15, 2004, the Governor of each State shall submit designations referred in paragraph (1) for the July 1997 PM2.5 national ambient air quality standards for each area within the State, based on air quality monitoring data collected in accordance with any applicable Federal reference methods for the relevant area.

§ 7407(d)(6)(A). And section 107(d)(6)(B) provides:

Notwithstanding any other provision of law, not later than December 31, 2005, the Administrator shall, consistent with paragraph (1), promulgate the designations referred to in subparagraph (A) for each area of each State for the July 1997 PM2.5 national ambient air quality standards.

§ 7407(d)(6)(B).

In April 2003, EPA issued a guidance document initiating the PM2.5 designation process. Known as the Holmstead Memo, the document explains the timeline for state submissions and, more importantly, the criteria EPA would employ in reviewing those submissions. Memorandum from Jeffrey R. Holmstead, Assistant Administrator, to Regional Administrators, Regions...

To continue reading

FREE SIGN UP