Atk Launch Sys. Inc. v. United States Envtl. Prot. Agency

• Decision Date: 06 July 2011
• Docket Number: 10–9502.,Nos. 09–9561,10–9501,s. 09–9561
• Citation: 651 F.3d 1194
• Parties: ATK LAUNCH SYSTEMS, INC., Petitioner,v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,Utah Physicians for a Healthy Environment, Amicus Curiae,Dr. Brian Moench, Movant.
• Court: U.S. Court of Appeals — Tenth Circuit

651 F.3d 1194

ATK LAUNCH SYSTEMS, INC., Petitioner,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,Utah Physicians for a Healthy Environment, Amicus Curiae,Dr. Brian Moench, Movant.

Nos. 09–9561

10–9501

10–9502.

United States Court of Appeals, Tenth Circuit.

July 6, 2011.

Michael A. Zody (Michael L. Larsen, David W. Tundermann, M. Lindsay Ford, and Elizabeth A. Schulte with him on the briefs), Parsons Behle & Latimer, Salt Lake City, UT, for Petitioner.Jessica O'Donnell, United States Department of Justice, Environment & Natural Resources Division (Geoffrey L. Wilcox, Office of General Counsel, United States Environmental Protection Agency, and Ignacia S. Moreno, Assistant Attorney General, Environment & Natural Resources Division, with her on the brief), Washington, D.C., Respondent.Joro Walker and Charles R. Dubuc, Western Resource Advocates, Salt Lake City, UT, on the brief for Amicus Curiae and Movant.Before MURPHY, HARTZ, and GORSUCH, Circuit Judges.

PETITION FOR REVIEW FROM AN ORDER OF THE ENVIRONMENTAL PROTECTION AGENCY (EPA–HQ–OAR–2007–0562)

MURPHY, Circuit Judge.I. Introduction

Under the Clean Air Act, the Environmental Protection Agency (“EPA”) is charged with establishing National Ambient Air Quality Standards (“NAAQS”) for various air pollutants. 42 U.S.C. § 7409. Once a NAAQS is established, EPA must promulgate designations of geographic areas across the nation according to their compliance with the NAAQS. Id. § 7407. These consolidated petitions challenge EPA's inclusion of portions of Box Elder County, Utah, and Tooele County, Utah, in a “nonattainment” area as to the NAAQS for fine particulate matter. EPA moved to dismiss the petitions or to transfer the petitions to the D.C. Circuit, arguing the Clean Air Act's judicial review provision designates the D.C. Circuit as the proper forum. For the reasons set out below, this court TRANSFERS the petitions to the U.S. Court of Appeals for the District of Columbia Circuit.

II. Background

EPA is charged with establishing NAAQS for various air pollutants that may endanger public health and welfare. 42 U.S.C. §§ 7408–09. The NAAQS sets the maximum allowable air concentration for a particular pollutant. Id. § 7408. Once a NAAQS is established, each state is required to submit a list of all areas in the state with designations of nonattainment, attainment, or unclassifiable. Id. § 7407(d)(1)(A). Attainment areas meet the air quality standard established by the relevant NAAQS. Id. § 7407(d)(1)(A)(ii). Nonattainment areas are areas with air quality that does not meet the NAAQS or with air quality that “contributes to ambient air quality in a nearby area that does not meet” the NAAQS. Id. § 7407(d)(1)(A)(i). Finally, unclassifiable areas are areas as to which there is insufficient information for classification. Id. § 7407(d)(1)(A)(iii). EPA reviews all states' submitted designations and, if it disagrees with a particular designation, it must notify the state and give it an opportunity to demonstrate why any proposed modification is inappropriate. Id. § 7407(d)(1)(B)(ii). EPA then promulgates final designations. Id. § 7407(d)(1)(B)(i). These designations affect the obligations under the Act for each state in creating its State Implementation Plan (“SIP”), a plan each state must submit to EPA for approval to provide for the state's achievement and maintenance of the air quality established in the relevant NAAQS. Id. §§ 7410, 7471, 7502.

Since 1997, EPA has maintained a NAAQS for fine particulate matter, a pollutant known as PM2.5 because it consists of particles less than 2.5 micrometers in aerodynamic diameter. See National Ambient Air Quality Standards for Particulate Matter, 62 Fed.Reg. 38,652 (July 18, 1997) (codified at 40 C.F.R. § 50.7). In 2006, EPA issued a revised NAAQS for PM2.5, which triggered the designation process outlined above. See National Ambient Air Quality Standards for Particulate Matter, 71 Fed.Reg. 61,144 (Oct. 17, 2006) (codified at 40 C.F.R. § 50.7). EPA subsequently issued a guidance letter to the states explaining that the nonattainment designation applies not only to those areas violating the new PM2.5 standard but also areas contributing to nearby violations. The guidance letter identified nine factors states should consider in recommending designations, but cautioned that states should evaluate areas “on a case-by-case basis” and consider any relevant factors or circumstances.

States then submitted proposed designations to EPA. Among others, Utah's proposed designations defined one nonattainment area centered in Salt Lake City to include the entirety of Salt Lake and Davis counties and a portion of Weber county. Utah proposed that Box Elder and Tooele counties be designated attainment areas (or, in the alternative, unclassifiable) in their entirety. Pursuant to the Clean Air Act's requirements, EPA then notified Utah that it intended to modify the proposed designations to, among other things, include eastern portions of Box Elder and Tooele counties within the Salt Lake City nonattainment area. After all notifications of proposed modifications had been made to various states, EPA invited public comment prior to issuing a final designations rule. See Designations Recommendations: Notice of Availability and Public Comment Period, 73 Fed.Reg. 51,259 (Sept. 2, 2008). Petitioners ATK Launch Systems (“ATK”), Box Elder County, Brigham City, Grantsville City, Tooele City, and the State of Utah submitted comments opposing the modification. EPA then issued its final designation rule explaining the methodology for determining designations and enumerating designations for areas across the country. Air Quality Designations for the 2006 PM2.5 NAAQS, 74 Fed.Reg. 58,688 (Nov. 13, 2009) (codified at 40 C.F.R. Part 81) (“Designations Rule”). In that rule, consistent with the notification of modification previously issued to Utah, EPA included eastern portions of Box Elder and Tooele counties in a nonattainment area. Id. at 58,769–70.

ATK, a business with operations in the eastern portion of Box Elder County, petitioned this court for review of EPA's inclusion of that location in the final nonattainment area. Likewise, Tooele County, Tooele City, and Grantsville City petitioned for review of EPA's inclusion of the eastern portion of Tooele County. Finally, Box Elder County and Brigham City petitioned for review of the inclusion of the eastern portion of Box Elder County. This court consolidated the petitions. The consolidated petitions argue the modifications to Utah's proposed designations concerning Box Elder and Tooele counties are arbitrary and capricious.

III. Discussion

In a motion to dismiss or to transfer the petitions, EPA raised the threshold question whether the petitions are properly adjudicated in this court or whether they belong in the D.C. Circuit under the judicial review provision of the Clean Air Act. See 42 U.S.C. § 7607(b)(1).¹ Under the Act, petitions for review of “nationally applicable regulations promulgated, or final action taken” are to be filed in the D.C. Circuit. Id. Petitions challenging any final action “which is locally or regionally applicable,” however, must be filed in the court of appeals in the “appropriate circuit.” Id. Finally, the Act's judicial review provision states that “[n]otwithstanding the previous sentence [concerning local or regional actions,] a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” Id.

The inquiry thus begins by determining if the challenged regulation is “nationally applicable” or “locally or regionally applicable.” Id. The language of the Clean Air Act provision makes clear that this court must analyze whether the regulation itself is nationally applicable, not whether the effects complained of or the petitioner's challenge to that regulation is nationally applicable. Id. (assigning to the D.C. Circuit challenges to “nationally applicable regulations promulgated”). Other circuits to consider the issue have taken a similar approach. Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d 1224, 1249 (D.C.Cir.1988) (looking at face of rule, rather than practical effect, in determining national applicability); see Texas v. EPA, No. 10–60961, 2011 WL 710598, at *3 (5th Cir. Feb. 24, 2011) (same).²

The EPA Designations Rule at issue here establishes “initial [PM2.5] air quality designations for most areas in the United States.” Designations Rule, 74 Fed.Reg. at 58,688. The actual designations list includes designations of areas within each state and territory in the country. Id. at 58,701–781. The nonattainment designation was assigned to thirty-one areas across the country, areas which include portions of states with no local or regional connection to one another, such as California, Pennsylvania, and Alabama. Id. at 58,696. That the regulation reaches geographic areas from coast to coast and beyond is, at a minimum, a strong indicator that the regulation is nationally applicable.

In promulgating final designations, EPA also applies a uniform process and standard across the country. EPA explained that it “invited all states and tribes to submit area and boundary recommendations” and “issued guidance” concerning how to determine nonattainment designations and area boundaries. Id. at 59,692, 58,693. As part of its guidance, EPA “recommended nine factors ... [it] considered relevant for designations.” Id. at 58,693. EPA further explained its methodology in determining when an area “contributes” to a nearby violation, what constitutes a “nearby” area, how it determined where the boundaries of those areas would be drawn, and what presumptions it applied to metropolitan areas....