Am. Petroleum Inst. v. U.S. Envt'l Protection Agency
| Decision Date | 04 January 2000 |
| Docket Number | No. 98-1561,98-1561 |
| Citation | 198 F.3d 275 |
| Parties | (D.C. Cir. 1999) American Petroleum Institute and National Petrochemical & Refiners Association, Petitioners v. U.S. Environmental Protection Agency and Carol M. Browner, Administrator, U.S. Environmental Protection Agency, Respondents Valero Energy Corporation, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of an Order of the Environmental Protection Agency
Michael F. McBride argued the cause for petitioners. With him on the briefs were Bruce W. Neely, G. William Frick, John E. Reese and Maurice H. McBride.
Mary F. Edgar, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief was Lois J. Schiffer, Assistant Attorney General, and John T. Hannon, Attorney, Office of General Counsel, U.S. Environmental Protection Agency. Christopher S. Vaden, Attorney, U.S. Department of Justice, entered an appearance.
Sam Kalen and Howard Bleichfeld were on the brief for intervenor.
Before: Silberman, Williams and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Automobile engines emit volatile organic compounds ("VOCs"), which together with nitrogen oxides ("NOX") form ozone. Reformulated gasoline ("RFG") can reduce VOCs emissions compared to levels associated with ordinary gasoline; but it costs more, and there is some concern about the nation's current RFG production capacity. See 42 U.S.C. § 7545(k)(6)(B) (1994) (). In guiding the efforts of the Environmental Protection Agency to limit ozone concentrations, Congress in the Clean Air Act (the "Act") authorized limited reliance on RFG. It directed that RFG should initially be mandatory in the nine worst ozone areas with populations over 250,000, with any area later classified as "Severe" to be added as well. See 42 U.S.C. § 7545(k)(1), (5), (10)(D). And it also provided for "opt-in," i.e., for election by a state to demand an EPA ban on the sale of non-RFG in specified areas. But Congress carefully limited the eligible areas:
Upon the application of the Governor of a State, the Administrator shall apply the prohibition [on the sale of non-reformulated gasoline] in any area in the State classified ... as a Marginal, Moderate, Serious, or Severe Area....
Act § 211(k)(6)(A), 42 U.S.C. § 7545(k)(6)(A) (emphasis added). There is a fifth category, "Extreme," to which only Los Angeles belongs; there was no need to include that category because it was automatically covered by Congress's direct mandate.
Apart from Los Angeles, most areas of the United States that are not in "attainment" for EPA's ozone standards belong to one of the four specified categories. But for several reasons--mainly the interaction between Congress's (1) rules limiting the ability of a nonattainment area to break into the broad sunlit uplands of attainment, and (2) provisions governing the treatment of missing data--an area may be in "nonattainment" but not in any of the four specified classes. In interpreting the opt-in provision EPA decided that Congress meant to include not only "Marginal, Moderate, Serious, or Severe" areas, but also any other areas that either were currently out of attainment or had ever been. The American Petroleum Institute ("API") has petitioned for review of the rule, arguing that the agency exceeded its statutory authority; we agree.
* * *
The Act requires EPA to establish and periodically revise a primary national ambient air quality standard ("NAAQS") for each air pollutant that the agency identifies as meeting certain criteria. See 42 U.S.C. §§ 7408-7409. The primary NAAQS for each pollutant is the maximum concentration "requisite to protect the public health" with "an adequate margin of safety." 42 U.S.C. § 7409(b)(1). In 1979 the EPA administrator set a primary NAAQS for ozone at 0.120 parts per million ("ppm"), averaged over intervals of one hour. See 44 Fed. Reg. 8202. That level was upheld by this court in American Petroleum Inst. v. Costle, 665 F.2d 1176 (D.C. Cir. 1981), and remains in effect today.1
In approaching this case the most critical distinction is between "nonattainment" and "design value" as measures of compliance. A maximum concentration, without more, leaves open the question of how often an area's hourly reading can exceed 0.120 ppm without causing the area to be out of compliance. Congress adopted EPA's answer to this question. It decreed, "by operation of law," that each area's attainment status would be based on the regulatory standards "in effect immediately before November 15, 1990." 42 U.S.C. § 7407(d)(1)(C). Under those standards (also still in effect), an area is allowed no more than one day a year in which its maximum hourly ozone concentration is greater than 0.120 ppm. But the exact formula is more complicated because it recognizes that many areas will not have data for every hour of the year; it therefore uses estimates to fill this gap. See 40 CFR pt. 50, App. H. The formula generates an "expected number of days per calendar year with maximum hourly average concentrations above 0.12 parts per million," id. § 50.9(a), and if the expected number of exceedances for a three-year period is greater than one, the area is in nonattainment.
In 1990 Congress also introduced, for ozone, a refinement based on how far each nonattainment area was from attainment status, establishing different dates for compliance according to the severity of the existing violations. See 42 U.S.C. § 7511(a)(1). To group areas according to the various deadlines, Congress used a concept already in use by EPA, known as "design value," and once again adopted EPA's method for calculating this number. See id. (). Much like the calculation of attainment, EPA's method for determining design values also excuses one exceedance per year (e.g., the first three exceedances in a three-year period have no effect on the design value). But it has no mechanism for generating data to fill gaps in monitoring: Here, the design value is simply the fourth-highest daily maximum ozone concentration in an area over three consecutive years for which there are sufficient data. See American Trucking Ass'ns v. EPA, 175 F.3d 1027, 1046 n.6 (D.C. Cir. 1999) ("ATA"), modified on reh'g, 195 F.3d 4 (D.C. Cir. 1999); EPA, The Clean Air Act Ozone Design Value Study: Final Report 1-3 to 1-5 (1994).
In § 181(a)(1) of the Act Congress used design value to create five categories of nonattainment, with varying compliance deadlines for each category:
Margina l0.121 to 0.138 ppm
Moderate 0.138 to 0.160 ppm
Serious 0.160 to 0.180 ppm
Severe 0.180 to 0.280 ppm
Extreme 0.280 ppm and above
See 42 U.S.C. § 7511(a)(1) tbl.1. But because Congress treated missing data differently for purposes of design value and attainment status, while every area with a known design value above 0.120 ppm is in nonattainment, an area may be in nonattainment even though its design value is 0.120 ppm or below. EPA called such areas "submarginal." See 56 Fed. Reg. at 56,697/2 (1991).
Similarly, § 107(d)(1)(C)(i) of the Act, 42 U.S.C. § 7407(d)(1)(C)(i), requires areas designated nonattainment under portions of the previous standards, see 42 U.S.C. § 7407(d)(1)(C) (), to remain so classified because of inadequate data .EPA called such areas "incomplete data areas." 56 Fed. Reg. at 56,697/3; cf. 42 U.S.C. § 7511e ().
The key issue here is the application of the RFG program to these two types of areas, "submarginal" and "incomplete data."
* * *
In the disputed rule, EPA stated that any "area currently or previously designated as a nonattainment area for ozone under 40 CFR 50.9 ... or any time later, may be included on petition of the governor." 40 CFR § 80.70(k); 63 Fed. Reg. at 52,104. Largely because of the divergence between the concepts of nonattainment and design value, this rule swept into "opt-in" a variety of areas not belonging to the four categories specified by Congress--Marginal, Moderate, Serious or Severe. We assess the validity of the rule under the familiar two-step process in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 & nn.9 & 11 (1984).
Chevron requires us to determine whether Congress spoke "to the precise question at issue." Id. at 842. It is hard to imagine how Congress could have done so more clearly. Acting within a universe where nonattainment and the four categories overlap but are distinct, Congress chose the four categories. If it meant to express "nonattainment," its wording was not merely a long-winded but a positively obtuse way of doing so. As we said in Michigan Citizens for an Independent Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir.), aff'd by an equally divided court, 493 U.S. 38, 39 (1989), if Congress makes an explicit provision for apples, oranges and bananas, it is most unlikely to have meant grapefruit. Id. at 1293.
Despite the text, EPA argues that the scope of § 211(k)(6) is ambiguous, thus opening the door to "reasonable" interpretations by EPA. It notes that § 181(a)(1) of the Act states that "[e]ach area designated nonattainment for ozone ... shall be classified at the time of such designation ... as a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area...
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