State v. Envtl. Prot. Agency

• Decision Date: 13 September 2019
• Docket Number: No. 16-1406,16-1406
• Citation: 938 F.3d 303
• Parties: STATE of Wisconsin, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Administrator, United States Environmental Protection Agency, Respondents American Lung Association, et al., Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

938 F.3d 303

STATE of Wisconsin, et al., Petitioners

v.ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Administrator, United States Environmental Protection Agency, Respondents

American Lung Association, et al., Intervenors

No. 16-1406

United States Court of Appeals, District of Columbia Circuit.

Argued October 3, 2018

Decided September 13, 2019

Neil Gormley argued the cause for petitioners Conservation Groups. Valerie S. Edge, Deputy Attorney General, Office of the Attorney General for the State of Delaware, argued the cause for petitioner State of Delaware. With them on the briefs were David Baron, New York, NY, Charles McPhedran, Philadelphia, PA, Joshua R. Stebbins, and Zachary M. Fabish, Washington, DC. Seth L. Johnson entered an appearance.

Misha Tseytlin, Solicitor General, Office of the Attorney General for the State of Wisconsin, and Harvey M. Sheldon, Chicago, IL, argued the causes for State Petitioners, Cedar Falls Utilities, and City of Ames, Iowa. With them on the briefs were Brad D. Schimel, Attorney General, Luke N. Berg, Deputy Solicitor General, Peter Michael, Attorney General, Office of the Attorney General for the State of Wyoming, James Kaste, Deputy Attorney General, Erik Petersen, Senior Assistant Attorney General, Leslie Sue Ritts, Steve Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Robert D. Tambling, Assistant Attorney General, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Nicholas J. Bronni, Deputy Solicitor General, Michael DeWine, Attorney General, Office of the Attorney General for the State of Ohio, Eric E. Murphy, State Solicitor, Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Prisc illa M. Hubenak, and Craig J. Pritzlaff and Linda B. Secord, Assistant Attorneys General. Andrew L. Brasher, Deputy Solicitor, Office of the Attorney General for the S tate of Alabama, Michael J. McGrady, Senior Assistant Attorney General, Office of the Atto rney General for the State of Wyomin g, Lee P. Rudofsky, Solicitor, Office of the Attorney General for the State of Arkansas, and Ryan Walsh entered appearances.

Norman W. Fichthorn, Washington, DC, Aaron M. Streett, and C. Grady Moore, III argued the causes for Industry Petitioners. With them on the briefs were E. Carter Chandler Clements, Peter S. Glaser, Washington, DC, Margaret Claiborne Campbell, M. Buck Dixon, Atlanta, GA, Scott C. Oostdyk, E. Duncan Getchell, Jr., Michael H. Brady, Richmond, VA, Jane E. Montgomery, J. Michael Showalter, Amy Antoniolli, Chicago, IL, P. Stephen Gidiere, III, Julia B. Barber, Birmingham, AL, David W. Mitchell, San Jose, CA, Daniel J. Kelly, San Francisco, CA, David M. Flannery, Kathy G. Beckett, Edward L. Kropp , Charleston, WV, Megan H. Berge , Washington, DC, Charles T. Wehland, Chicago, IL, Todd E. Palmer, Milwaukee, WI, John A. Sheehan, Los Angeles, CA, Valerie L. Green, Ben H. Stone, Gulfport, MS, Terese T. Wyly, M. Brant Pettis, Gulfport, MS, Louis E. Tosi, Cheri A. Budzynski, Toledo, OH, and Michael A. Born. Alina Fortson and Jordan Hemaidan entered appearances.

Amy J. Dona and Chloe H. Kolman, Attorneys, U.S. Department of Justice, argued the causes for respondents. With them on the brief were Jonathan Brightbill, Deputy Assistant Attorney General, and Stephanie L. Hogan, Attorney, U.S. Environmental Protection Agency.

E. Carter Chandler Clements, Washington, DC, argued the cause for Industry Respondent-Intervenors. With her on the brief were Norman W. Fichthorn, Peter S. Glaser, Washington, DC, Margaret Claiborne Campbell, M. Buck Dixon, Atlanta, GA, Scott C. Oostdyk, E. Duncan Getchell, Jr., Michael H. Brady, Richmond, VA, Robert A. Manning, and Joseph A. Brown, Tallahassee, FL.

Andrew G. Frank, Assistant Attorney General, argued the cause for State Intervenors. With him on the brief were Eric T. Schneiderman, Attorney General at the time the brief was filed, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Michael J. Myers, Senior Counsel, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Jillian M. Riley, Assistant Attorney General, Environmental Protection Division, Peter F. Kilmartin, Attorney General, Rhode Island Department of Attorney General, Gregory S. Schultz, Special Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Michael F. Strande, Assistant Attorney General, Gordon J. MacDonald, Attorney General, K. Allen Brooks, Assistant Attorney General, New Hampshire Office of the Attorney General, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, and Nicholas F. Persampieri, Assistant Attorney General. Morgan A. Costello, Assistant Attorney General, Office of the Attorney General for the State of New York, entered an appearance.

Charles McPhedran, Philadelphia, PA, argued the cause for Public Health and Environmental Intervenors. With him on the brief were Sean H. Donahue, Susannah L. Weaver, Graham G. McCahan, Vickie L. Patton, Washington, DC, Ann Brewster Weeks, Neil Gormley, David Baron, Howard Fox, Joshua R. Stebbins, and Zachary M. Fabish, Washington, DC.

Hope M. Babcock was on the brief for amicus curiae American Thoracic Society in support of respondent-intervenors American Lung Association, Appalachian Mountain Club, Environmental Defense Fund, and Sierra Club.

Before: Srinivasan, Millett and Wilkins, Circuit Judges.

Per Curiam:

When upwind States pollute, downwind States can suffer the consequences. Congress addressed that problem in the Clean Air Act by enacting a "Good Neighbor Provision." The Provision requires upwind States to eliminate their significant contributions to air quality problems in downwind States.

In 2016, the Environmental Protection Agency implemented that requirement by promulgating a regulation addressing the interstate transport of ozone, or smog. A number of parties brought challenges to the Rule, some contending that the Rule is too strict and others contending that it is too lenient.

We conclude that, in one respect, the Rule is inconsistent with the Act: it allows upwind States to continue their significant contributions to downwind air quality problems beyond the statutory deadlines by which downwind States must demonstrate their attainment of air quality standards. In all other respects, though, we determine that EPA acted lawfully and rationally.

I

The Clean Air Act tasks EPA with setting national ambient air quality standards, or NAAQS. See 42 U.S.C. § 7409(a). Individual States must ensure that their ambient air quality complies with the national standard. To that end, the Clean Air Act requires States to adopt State implementation plans, or SIPs, that provide for implementation, maintenance and enforcement of the national standard. Id. § 7410(a)(1). If a State fails to submit a SIP, or if EPA disapproves it, EPA must issue a federal implementation plan, or FIP, to correct any deficiency. Id. § 7410(c)(1).

State-level regulation of air quality faces a confounding variable. Air pollution, once emitted, drifts with the wind. Upwind pollutants affect air quality in downwind States via various chemical processes. Ozone, for example, forms from the interaction of nitrogen oxides (NO_x) and volatile organic compounds (VOCs) in the presence of sunlight. For downwind States, upwind emissions of these ozone precursors can pose a significant problem. According to a study referenced by EPA, on average, over three-quarters of the ground-level ozone in downwind States comes from upwind emissions. 81 Fed. Reg. at 74,514.

Congress included a Good Neighbor Provision in the Clean Air Act to address the problem of upwind States’ pollution impairing downwind States’ air quality.

The Provision prohibits States from "emitting any air pollutant in amounts" that will "contribute significantly to nonattainment" or "interfere with maintenance" of air quality in other States. 42 U.S.C. § 7410(a)(2)(D)(i).

EPA has addressed the Good Neighbor Provision’s requirements in a series of rulemakings. In 2011, EPA promulgated the Cross-State Air Pollution Rule (CSAPR), which applied to States whose upwind pollution violated good neighbor obligations under the 1997 ozone NAAQS and the 1997 and 2006 fine particulate matter NAAQS. See 76 Fed. Reg. 48,208 (Aug. 8, 2011).

In 2008, EPA reduced the ozone NAAQS from 80 parts per billion (ppb) to 75 ppb. As a result, EPA promulgated the rule at issue in this case: an update to the CSAPR for eastern States that accounts for the stricter 2008 ozone NAAQS. See Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, 81 Fed. Reg. 74,504 (Oct. 26, 2016) (Update Rule). Under the Update Rule, EPA proceeded in four steps.

At the first step, EPA identified downwind States expected to have problems attaining or maintaining air quality in compliance with the 2008 ozone NAAQS. To identify those States, EPA had to estimate the future air quality in each State. Id. at 74,516 –17. EPA devised a measure to turn 2011 ozone measurements into 2017 projections.

EPA started with 2011 modeled data from "receptors," devices in each State that measure air quality. EPA modeled ozone concentrations in a three-by-three grid around each receptor. EPA chose the ten days with the highest projected ozone concentration, noted which of the nine 12-km² grid cells had the highest ozone concentration on that day, and averaged the ten observations. See id . at 74,526 –27. EPA then ran the model for 2017, inputting 2011 environmental conditions (like rainfall and fire emissions) but projected 2017 NO_x emissions rates. The percentage change from 2011 to 2017 was deemed a receptor’s "relative response factor," which measures the sensitivity of an area to ozone formation. Multiplying a 2011 observation by the relevant...