Nat'l Envtl. Dev. Association's Clean Air Project v. Envtl. Prot. Agency, s. 10–1252

• Decision Date: 20 July 2012
• Docket Number: 11–1080,11–1081,11–1090,10–1256,11–1073,11–1092.,Nos. 10–1252,10–1255,10–1254,10–1259,10–1258,s. 10–1252
• Citation: 686 F.3d 803
• Parties: NATIONAL ENVIRONMENTAL DEVELOPMENT ASSOCIATION'S CLEAN AIR PROJECT, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. Louisiana Department of Environmental Quality, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

686 F.3d 803

NATIONAL ENVIRONMENTAL DEVELOPMENT ASSOCIATION'S CLEAN AIR PROJECT, Petitioner

v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.Louisiana Department of Environmental Quality, et al., Intervenors.

Nos. 10–1252, 10–1254, 10–1255, 10–1256, 10–1258, 10–1259, 11–1073, 11–1080, 11–1081, 11–1090, 11–1092.

United States Court of Appeals, District of Columbia Circuit.

Argued May 3, 2012.

Decided July 20, 2012.

On Petitions for Review of a Final Action of the United States Environmental Protection Agency.

Paul M. Seby, Special Assistant Attorney General, Office of the Attorney General for the State of North Dakota, et al., argued the cause for petitioner State of North Dakota. Mark W. DeLaquil argued the cause for petitioner ASARCO LLC. With them on the briefs were Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Margaret I. Olson, Assistant Attorney General, Andrea Bear Field, Lucinda Minton Langworthy, Robert N. Steinwurtzel, Leslie Sue Ritts, Benjamin Joseph Alke, Robert K. Baldwin, Marty J. Jackley, Attorney General, Office of the Attorney General for the State of South Dakota, Roxanne Giedd, Deputy Attorney General, Catherine Cortez Masto, Attorney General, Office of the Attorney General for the State Nevada, Jasmine K. Mehta, Deputy Attorney General, James D. “Buddy” Caldwell, Attorney General, Office of the Attorney General for the State of Louisiana, Megan K. Terrell, Assistant Attorney General, Herman Robinson, Donald J. Trahan, Deidra L. Johnson, Gregory W. Abbott, Attorney General, Office of the Attorney General for the State of Texas, and Nancy E. Olinger, Assistant Attorney General. Nhu Q. Nguyen, Senior Deputy Attorney General, Office of the Attorney General for the State of Nevada, entered an appearance.

Madison B.C. Miller was on the brief for amicus curiae Oklahoma Department of Environmental Quality in support of state petitioners, non-state petitioners and supporting intervenors.

Norman L. Rave Jr., Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Steven Silverman, Attorney, United States Environmental Protection Agency, and Michael Thrift, Attorney.

Seth L. Johnson and David S. Baron were on the brief for respondent-intervenors American Lung Association, et al.

Before: SENTELLE, Chief Judge, KAVANAUGH, Circuit Judge, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

Several states and state regulatory agencies, together with corporations and industrial associations, petition for review of the Environmental Protection Agency's rule entitled “Primary National Ambient Air Quality Standard for Sulfur Dioxide,” and of the subsequent denial of petitions for reconsideration of the standard. Petitioners contend, first, that EPA failed to follow notice-and-comment rulemaking procedures, and second, that the agency arbitrarily set the maximum sulfur dioxide (SO2) concentration at a level lower than statutorily authorized. For the reasons discussed more fully below, we conclude that the challenge to the rulemaking procedure is not within our jurisdiction and must be dismissed. We further conclude that EPA did not act arbitrarily in setting the level of SO2 emissions and therefore deny that portion of the petitions for review.

I. Background

A. The Clean Air Act

The Clean Air Act (CAA) in §§ 108 and 109 requires EPA to establish, review, and revise air quality criteria and standards, allowing an “adequate margin of safety.” 42 U.S.C. §§ 7408, 7409. The 1970 amendments to the Act required the Administrator to publish a list of air pollutants it intended to regulate under the Act, including all those pollutants the Administrator found reasonably could be anticipated to endanger public health. 42 U.S.C. § 7408(a)(1). For each listed pollutant, the Administrator had to issue air quality criteria that “accurately reflect[ed] 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, in varying quantities,” including the effects of a pollutant when it combines with other factors such as atmospheric conditions or other pollutants. 42 U.S.C. § 7408(a)(2).

The CAA required the Administrator to promulgate a primary and secondary National Ambient Air Quality Standard (NAAQS) for each listed pollutant by 1971 and to review and revise those standards as appropriate every five years. 42 U.S.C. § 7409(a), (d)(1). The Act requires that the primary standards “be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.” 42 U.S.C. § 7409(b)(1).

The Act vests each State with “the primary responsibility for assuring air quality within the entire geographic area comprising such State....” 42 U.S.C. § 7407(a). After EPA promulgates a new final standard, the Act gives States a chance to recommend whether areas within their boundaries should be designated as “nonattainment,” “attainment,” or “unclassifiable,” and the Agency makes the final designation. 42 U.S.C. § 7407(d). States then must submit State Implementation Plans (SIPs), which, after receiving EPA approval, impose federally enforceable controls on air pollution sources so States can attain and maintain the NAAQS. 42 U.S.C. §§ 7410, 7502, 7514–7514a.

B. Regulatory Background: Sulfur Dioxide NAAQS

Sulfur dioxide, a “highly reactive colorless gas,” derives mostly from fossil fuel combustion. It smells like rotting eggs and, at elevated concentrations in the air, can cause acid rain. Its presence in the ambient air can cause adverse health effects, particularly in asthmatics. See Am. Lung Ass'n v. EPA, 134 F.3d 388, 389 (D.C.Cir.1998).

On April 30, 1971, EPA promulgated the first primary NAAQS for SO2 concentrations in the ambient air. 36 Fed.Reg. 8186 (Apr. 30, 1971). The standard set a 24–hour concentration limit of 140 parts per billion (ppb) SO2, and an annual average limit of 30 ppb. Id. at 8187. Over the next three decades, EPA reviewed the standard, but did not revise it. See74 Fed.Reg. 64810, 64813 (Dec. 8, 2009) (providing history of the SO2 NAAQS).

In 1988, EPA declined to revise the NAAQS, but requested comment on a proposal to add a new 1–hour primary standard of 400 ppb to protect against five- to ten-minute bursts of SO2 concentrations. 53 Fed.Reg. 14926 (Apr. 26, 1988). In response to those comments and other developments, in 1994, EPA offered several more options for comment, including the addition of a five-minute standard of 600 ppb. 59 Fed.Reg. 58958 (Nov. 15, 1994). After concluding its review of these proposals and comments in 1996, EPA announced it would not revise the NAAQS. In its review, it found that under the current standards at that time, thousands of asthmatics could be exposed to enough short-term bursts of SO2 that their lung function could be impaired. 61 Fed.Reg. 25566, 25572 (May 22, 1996). EPA concluded, however, that such effects “do not pose a broad public health problem when viewed from a national perspective” and did not warrant revisions to the SO2 NAAQS. Id. at 25572, 25575.

The American Lung Association and the Environmental Defense Fund challenged before this Court the Administrator's decision not to implement a five-minute standard. We found that EPA had failed to explain adequately how it reached its decision not to revise the NAAQS, given that the Administrator had found that short-term exposures to bursts of SO2 could significantly affect the lung function of thousands of asthmatics. Am. Lung Ass'n, 134 F.3d at 392–93 (D.C.Cir.1998). Accordingly, we remanded the decision to EPA.

In response, EPA initiated the review of the SO2 NAAQS that eventually led to this proceeding. See71 Fed.Reg. 28023 (May 15, 2006). Based on that review, EPA proposed a rule to revise the primary SO2 standard. EPA proposed, inter alia, to revoke the current 24–hour and annual standards and to establish a standard to target short-term bursts of SO2 exposure—specifically, a 99th percentile 1–hour daily maximum standard level set somewhere between 100 ppb and 50 ppb. 74 Fed.Reg. 64810, 64845–86 (Dec. 8, 2009). EPA also proposed to amend ambient air monitoring, reporting, and network design requirements. The proposal focused on increasing and updating the monitoring network to support the proposed 1–hour standard. 74 Fed.Reg. at 64846–47.

C. The Final Rule

After receiving comments on its rule proposal, EPA issued a final rule addressing the primary SO2standard. 75 Fed.Reg. 35520 (June 22, 2010). Petitioners challenge two parts of the final rulemaking,which we describe here—the level at which EPA set the standard and a portion of its statements regarding the implementation plan for the standard.

1. Level

EPA mandated that States must meet a new 1–hour SO2 standard using a 99th percentile form, set at 75 ppb maximum SO2 concentration. 75 Fed.Reg. at 35548. The goal of the new standard is to prevent asthmatics from being exposed to short-term, five- to ten-minute bursts of SO2, which EPA found could cause lung function decrements in asthmatics. Id.

EPA explained that it conducted substantial amounts of new research to determine the appropriate level for the 1–hour SO2NAAQS. 75 Fed.Reg. at 35524. In 2008, EPA staff prepared an Integrated Science Assessment (ISA), which summarized the latest scientific knowledge regarding effects of exposure to SO2. In 2009, EPA staff prepared a Risk and Exposure Assessment (REA) to quantify the public health effects of exposure to SO2 in the ambient air. See 75 Fed.Reg. at 35523–24 (discussing development of ISA and REA). The ISA and REA focused on two types of studies—controlled human exposure clinical studies and epidemiologic studies. See75 Fed.Reg....