Clean Wis. v. Envtl. Prot. Agency & Andrew Wheeler

• Decision Date: 10 July 2020
• Docket Number: No. 18-1203,C/w 18-1205, 18-1206, 18-1208, 18-1212, 18-1214,18-1203
• Citation: 964 F.3d 1145
• Parties: CLEAN WISCONSIN, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Administrator, United States Environmental Protection Agency, Respondents BCCA Appeal Group, et al., Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

964 F.3d 1145

CLEAN WISCONSIN, Petitioner

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

BCCA Appeal Group, et al., Intervenors

No. 18-1203

C/w 18-1205, 18-1206, 18-1208, 18-1212, 18-1214

United States Court of Appeals, District of Columbia Circuit.

Argued November 6, 2019

Decided July 10, 2020

Daniel I. Rottenberg, Assistant Attorney General, Office of the Attorney General for the State of Illinois, Maxine I. Lipeles, David R. Baake, Robert Ukeiley, Howard A. Learner, and Ann Brewster Weeks argued the causes for petitioners. With them on the final joint briefs were Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Jane Elinor Notz, Solicitor General, Benna Ruth Solomon, Stephen J. Kane, Susan Hedman, Chicago, IL, Elena K. Saxonhouse, Joshua A. Berman, Scott Strand, Ann Jaworski, and Jonathan Evans.

Letitia James, Attorney General, 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, Special Counsel for Air Pollution and Climate Change Litigation, Brian Lusignan, Assistant Attorney General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, Maura Healy, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Peter F. Neronha, Attorney Gene ral, Office of the Attorney General for the State of Rhode Island, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, and Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, were on the brief for amici curiae the States of New York, et al. in support of petitioners.

Sue Chen and Tsuki Hoshijima, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief was Jeffrey Bossert Clark, Assistant Attorney General.

Neil D. Gordon, Assistant Attorney General, Office of the Attorney General for the State of Michigan, argued the cause for intervenor-respondent State of Michigan. With him on the brief were Dana Nessel, Attorney General, and Fadwa A. Hammoud, Solicitor General.

Aaron M. Streett argued the cause for intervenors Greater El Paso Chamber of Commerce, et al. in support of respondents. With him on the brief was Matthew L. Kuryla.

Gabe Johnson-Karp, Assistant Attorney General, Office of the Attorney General for the State of Wisconsin, argued the cause for intervenor State of Wisconsin in support of respondents. With him on the brief was Joshua L. Kaul, Attorney General.

Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Kyle D. Hawkins, Solicitor General, Bill Davis, Deputy Solicitor General, and Linda B. Secord, Assistant Attorney General, were on the brief for respondent-intervenors the State of Texas, et al.

John R. Jacus, Shannon W. Stevenson, Denver, CO, Catherine E. Stetson, and Jennifer L. Biever were on the brief for amici curiae American Petroleum Institute, et al. in support of respondents.

Before: Tatel, Griffith, and Pillard, Circuit Judges.

Opinion for the court filed Per Curiam.

In these consolidated petitions, several environmental organizations, municipal governments, and the State of Illinois challenge area designations promulgated by the Environmental Protection Agency (EPA) for the National Ambient Air Quality Standards (NAAQS) applicable to ground-level ozone, i.e., smog. Insisting that EPA failed to meet its basic obligation of reasoned decisionmaking for many of the designations, petitioners ask us to vacate those designations and send EPA back to the drawing board. In response, EPA disputes certain petitioners' standing, requests a voluntary remand of some designations, and defends other designations on their merits. For the following reasons, we find that at least one petitioner has standing to challenge each of the designations at issue, grant several of the petitions, deny one petition, and grant EPA's motion to remand the rest.

I

We have previously summarized the governing regulatory framework, and we draw on those decisions in providing an overview of the statutory provisions and the agency proceedings relevant to this case. See Miss. Comm'n on Envtl. Quality v. EPA , 790 F.3d 138 (D.C. Cir. 2015) (per curiam) (reviewing area designations for the 2008 ozone NAAQS); Catawba Cty. v. EPA , 571 F.3d 20 (D.C. Cir. 2009) (per curiam) (same for 1997 particulate matter NAAQS).

"Congress enacted the Clean Air Act (the Act), 42 U.S.C. §§ 7401 et seq., ‘to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population.’ " Miss. Comm'n , 790 F.3d at 144 (quoting 42 U.S.C. § 7401(b)(1) ). Under the Act, EPA must establish and periodically revise NAAQS for pollutants that "may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A). A NAAQS establishes the maximum permissible ambient—i.e., outdoor—air concentration for these so-called "criteria" pollutants. A network of air monitoring stations, known as monitors, measure pollutant concentrations and record violations of the NAAQS.

After EPA promulgates a new or revised NAAQS, the agency must designate each "area" in the United States as "attainment," "nonattainment," or "unclassifiable." See id. § 7407(d)(1)(A)(i)–(iii). Generally, areas that meet the relevant NAAQS are designated as attainment; areas that exceed the NAAQS as nonattainment; and areas that "permit no determination given existing data" as unclassifiable. Id. Under the Act, however, even an area whose ambient air concentration complies with the relevant NAAQS must be designated as nonattainment if it "contributes" to a NAAQS violation in a "nearby area." Id. § 7407(d)(1)(A)(i). "[C]ontributes," "nearby," and "area" are undefined in the Act.

EPA works collaboratively with states and tribes to determine the NAAQS attainment status for all areas within a respective state's borders. No later than one year after the agency promulgates a new or revised NAAQS, each state must recommend "initial designations" to EPA. Id. § 7407(d)(1)(A). A state's initial designations must suggest both the appropriate geographic boundaries for each "area" and whether EPA should classify the proposed areas as attainment, nonattainment, or unclassifiable. See id. § 7407(d)(1)(A)–(B).

Once EPA receives a state's initial designations, it may either promulgate them as submitted or modify them as it "deems necessary." Id. § 7407(d)(1)(B)(ii). EPA may change a state's recommended designation, alter a state's proposed geographic area, or both. See id. Although EPA "has no obligation to give any quantum of deference to a designation that it ‘deems necessary’ to change," Catawba , 571 F.3d at 40, it must notify the state of any intended change and provide the state with at least 120 days "to demonstrate why any proposed modification is inappropriate," 42 U.S.C. § 7407(d)(1)(B)(ii). "These notifications are commonly known as the 120-day letters." Air Quality Designations for the 2015 Ozone National Ambient Air Quality Standards, 82 Fed. Reg. 54,232, 54,233 (Nov. 16, 2017) ("2015 Designations Rule"). Under the Act, EPA must promulgate designations "as expeditiously as practicable, but in no case later than 2 years from" the date it revises a NAAQS. 42 U.S.C. § 7407(d)(1)(B)(i). If EPA "has insufficient information to promulgate the designations," it may extend the deadline "for up to one year," but no further. Id.

An area's designation is important because it determines the stringency of applicable emission controls. Although EPA has ultimate authority to determine each area's attainment status, states have "primary responsibility" for ensuring that the geographic areas within their borders either maintain attainment status or progress towards it. Id. § 7407(a). Accordingly, once EPA finalizes its designations, states must submit to EPA "implementation plan[s]" specifying how the NAAQS "will be achieved and maintained." Id . In attainment or unclassifiable areas, a state need only implement "emission limitations and such other measures as may be necessary ... to prevent significant deterioration of air quality." Id. § 7471. For nonattainment areas, by contrast, the Act imposes more stringent requirements, including, for example, requiring states to establish permitting programs for pollution sources, see id. § 7502(c)(5), and to demonstrate in their plans that they intend to implement "all reasonably available control measures" and "reasonably available control technology" to bring the area into attainment, id. § 7502(c)(1). The Act also imposes deadlines, or "attainment dates," on offending areas, which set the time period in which an area must reach attainment status. See id. § 7502(a)(2)(A).

This case involves the NAAQS for ozone, "a colorless gas that occurs both in the Earth's upper atmosphere and at ground level." Murray Energy Corp. v. EPA , 936 F.3d 597, 605 (D.C. Cir. 2019). Although "ozone is an essential presence in the atmosphere's stratospheric layer, it becomes harmful at ground level and can cause lung dysfunction, coughing, wheezing, shortness of breath, nausea,...