Com. of Va. v. E.P.A.
| Citation | 108 F.3d 1397 |
| Decision Date | 13 June 1997 |
| Docket Number | Nos. 95-1163,95-1177 and 95-1180,s. 95-1163 |
| Parties | , 323 U.S.App.D.C. 368, 65 USLW 2609, 27 Envtl. L. Rep. 20,718 COMMONWEALTH OF VIRGINIA, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. State of Connecticut, et al., Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
On Petitions for Review of an Order of the Environmental Protection Agency.
Edward W. Warren, Theodore B. Olson, Washington, DC and John Paul Woodley, Jr., Deputy Attorney General, Commonwealth of Virginia, Virginia, VA, argued the cause for petitioners. With them on the joint briefs were Roger L. Chaffe, Senior Assistant Attorney General, Mary J. Leugers, John R. Butcher, Carl Josephson, Assistant Attorneys General, V. Mark Slywynsky, Detriot, MI, Raymond Ludwiszewski, Washington, DC, Douglas I. Greenhaus, Nahant, MA, Virginia E. Davis, Augusta, ME, Charles H. Lockwood, Arlington, VA, Stuart A. C. Drake, Robert R. Gasaway, John E. Putnam, Washington, DC, David S. Swayze, Thomas P. Preston, Wilmington, DE and Allen Jones, Jr., Washington, DC.
Ronald M. Spritzer and Anna L. Wolgast, Attorneys, U.S. Department of Justice, Washington, DC, argued the cause for respondent. With them on the brief were Lois J. Schiffer, Assistant Attorney General, and Michael J. Horowitz, Attorney, Environmental Protection Agency.
William L. Pardee, Assistant Attorney General, Boston, MA, argued the cause for intervenors Commonwealth of Massachusetts, et al. With him on the joint intervenor-respondents brief were Brian J. Comerford, Stamford, CT, Marjorie L. Fox, Falls Church, VA, Lisa M. Burianek, Albany, NY and John W. Malley, Jr.
David G. Hawkins, Washington, DC and David M. Driesen, Olympia, WA, were on the brief for intervenors Natural Resources Defense Council, Inc. and American Lung Association, Inc.
Before: WILLIAMS, RANDOLPH, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
These are consolidated petitions for review of a final rule issued by the Environmental Protection Agency under the Clean Air Act ("CAA"). The rule is aimed at reducing ozone pollution in the northeastern United States. It requires the twelve states in the region and the District of Columbia to adopt what is essentially California's vehicle emission program. Opposing the rule, and appearing here as petitioners, are the Commonwealth of Virginia, and three associations representing automobile manufacturers and dealers. Intervening to defend the rule are the Commonwealth of Massachusetts, the States of New York, Connecticut, Rhode Island and Vermont, the City of New York, and two associations.
Petitioners believe EPA's rule is unsupported by the record, contrary to the statute, and constitutionally defective. The evidence regarding ozone pollution, they maintain, does not support EPA's demand for region-wide emission reductions and, in any event, the means EPA has chosen for realizing those reductions--mandating that these states prohibit the sale of new cars that do not satisfy California's standards--is something Congress has barred the Agency from imposing. A majority of the governors of the twelve northeastern states recommended, over the objection of Virginia and other states, that EPA impose this solution. The group operated as a regional commission under a new section of the Clean Air Act, a section petitioners say is unconstitutional because it gave the commission significant legislative and executive powers without regard to the Appointments Clause of the Constitution, the non-delegation doctrine, the Joinder and Compact Clauses and other constitutional limitations. Furthermore, in petitioners' view EPA's interpretation of the Act renders it unconstitutional under the Tenth Amendment because it compels the states to enact and administer a federal regulatory program.
EPA believed that if the states in the Northeast passed legislation adopting the California car program this would help alleviate the ozone hazard. Ozone (O sub3 ) in the upper atmosphere was not the problem. There it absorbs harmful ultraviolet rays. Ozone at ground level is another matter entirely. It is one of the primary constituents of smog. Ozone's three-atom arrangement is highly unstable: the third oxygen atom, in a process called oxidation, has an aggressive tendency to react with whatever substance is available. Ozone's high reactivity, evident in the stratosphere where ozone reacts with chlorofluorocarbons, has harmful effects at ground level. Much of the ozone inhaled reacts with sensitive lung tissues, irritating and inflaming the lungs, and causing a host of short-term adverse health consequences including chest pains, shortness of breath, coughing, nausea, throat irritation, and increased susceptibility to respiratory infections. Final Rule, 60 Fed.Reg. 4712, 4712-13 (1995). "The mechanisms of ozone-induced impairment of lung function are only partly understood," but "the effects of a single exposure to" ozone "are reversible and last up to 48" hours. Editorial, Ozone: Too Much in the Wrong Place, THE LANCET, July 27, 1991, at 221. On the other hand, COMMITTEE ON TROPOSPHERIC OZONE FORMATION AND MEASUREMENT, NATIONAL RESEARCH COUNCIL, RETHINKING THE OZONE PROBLEM IN URBAN AND REGIONAL AIR POLLUTION 33 (1991) [hereinafter NATIONAL RESEARCH COUNCIL]. In addition to its direct effect on humans, excessive ozone can also damage forests and food crops.
Exactly how ozone is created and transported in the lower atmosphere, and how it decays, is a matter of extreme complexity. Ozone is not a direct pollutant. Vehicles do not emit it, and it does not billow out of smokestacks. Instead, it is formed mostly from the mixture of two chemical precursors emitted by automobiles and industry: nitrogen oxides (NO subx ) and a large group of hydrocarbon pollutants called volatile organic compounds (VOCs). 1 NATIONAL RESEARCH COUNCIL, supra, at 153. These precursors cook in the sun--they cook best in a "sea" of warm stagnant air--and produce ozone through a complex chain of reactions. The creation of ozone can thus be seen as a seasonal phenomenon, with concentrations peaking in the summer, and as a diurnal occurrence, with concentrations peaking during the afternoon and falling during the night. The precursor- and ozone-laden air slowly moves downwind, and as the air mass moves, ozone levels often continue to increase, in part because the ozone has more time to develop, in part because the air mass picks up more precursors along the way. Ultimately, this process can bring high ozone levels to areas hundreds of miles downwind of the pollution sources. See id. at 100. Therein lies the source of much of the difficulty in controlling it.
At the moment, dozens of areas throughout the United States have not attained the national ambient air quality standard for ozone. The standard permits a maximum one-hour average ozone concentration of 0.12 parts per million. 40 C.F.R. § 50.9. If the ambient air exceeds this standard more than once per year averaged over three years, the area is considered in "nonattainment." Id. The ozone season of 1994 was a good one; EPA estimated that there was twelve percent less ozone than in 1985. EPA AIR QUALITY TRENDS BROCHURE 1994 (EPA-454/F-95-003) (1995). But the warmer 1995 season was worse, with national ozone concentrations increasing four percent from 1994. EPA AIR QUALITY TRENDS BROCHURE 1995 (EPA-454/F-96-008) (1996). According to press reports, New Jersey and Maryland each exceeded the ambient air standard fourteen times. See Northeast Ozone Problems Continue, Show Long-Term Gain, OCTANE WK., Oct. 9, 1995, at 2.
Because of the ozone transport phenomenon, an area in nonattainment may be unable to do much about it. Even if the state implements the strictest practicable control measures, it might still fail to satisfy the ambient air standard. Across the country there are what one might call interstate ozone transport regions: around Chicago; in the region from Cleveland to Erie, Pennsylvania; in the Texas-Louisiana area; and in the northeast from Virginia to Maine, an area that became subject to special legislation in 1990.
The "Northeast Ozone Transport Region," defined in the 1990 amendments to the Clean Air Act, consists of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Virginia, Vermont, and the District of Columbia. 2 To decrease ozone pollution in this "Region," EPA promulgated the rule we have before us. Each of these states had an implementation plan, adopted after public hearings, containing measures to control air pollution, and approved by EPA under section 110. CAA § 110(a)(1), 42 U.S.C. § 7410(a)(1). EPA's rule declared all of these implementation plans "substantially inadequate" and therefore in need of revision. Final Rule, 60 Fed.Reg. 4712, 4736 col. 2 (1995). The plans were inadequate, according to EPA, because nitrogen oxide and volatile organic compound emissions had to be reduced by 50% to 75% from a 1990 baseline "throughout" this densely populated Region to attain the national ambient air quality standard for ozone in "serious and severe areas." Id. at 4720 col. 1. EPA acknowledged that it was "enormously complicated to determine which reductions" were needed where. Id. col. 2. But, it said, "wind trajectory data" supported the following conclusions. Id. col. 3. During the summer, ozone and emissions of precursors in the Washington, D.C. area contribute to the ozone problem in Baltimore, which lies to the northeast. Baltimore and the rest of Maryland contribute to...
To continue reading
Request your trial
-
EME Homer City Generation, L.P. v. Envtl. Prot. Agency, No. 11-1302
...it) for choosing how to attain those standards within their borders. See Train v. NRDC, 421 U.S. 60, 63-67 (1975); Virginia v. EPA, 108 F.3d 1397, 1406-10 (D.C. Cir. 1997). The Act thus leaves it to the individual States to determine, in the first instance, the particular restrictions that ......
-
New York v. U.S. E.P.A.
...between the states and the federal government. Indeed the Act does have roles for both levels of government. See Virginia v. EPA, 108 F.3d 1397, 1408 (D.C.Cir.1997). While states are responsible for writing SIPs, the Act gives EPA responsibility for developing basic rules for the NSR progra......
-
Appalachian Power Co. v. Environmental Protection Agency
...call with respect to what we called the "TrainVirginia federalism bar." 213 F.3d at 687. We referred there to our holding in Virginia v. EPA, 108 F.3d 1397, 1408, modified on other grounds, 116 F.3d 499 (1997), that under 110 each state retains the power, in its SIP, to determine how it wil......
-
Miss. Comm'n On Envtl. Quality v. Envtl. Prot. Agency
...by ozone precursors, which “often develop into ozone ... by the time they reach the atmospheres of downwind States”); Virginia v. EPA, 108 F.3d 1397, 1400 (D.C.Cir.1997) (describing the “ozone transport phenomenon” in the lower atmosphere).26 Industrial Petitioner Devon Energy Corporation, ......
-
EPA's Fine Particulate Air Pollution Control Program
...§110(a)(3)(A), do not provide authority to EPA to require states to insert control measures that EPA selects. See Virginia v. EPA, 108 F.3d 1397, 1410, 27 ELR 20718 (D.C. Cir. 1997), modiied by 116 F.3d 1397, 27 ELR 21380 (D.C. Cir. 1997). 106. Train v. Natural Res. Def. Council, 421 U.S. 6......
-
(If) Things Fall Apart: Searching for Optimal Regulatory Solutions to Combating Climate Change Under Title I of the Existing CAA if Congressional Action Fails
...246, 6 ELR 20570 (1976); Fla. Power & Light Co. v. Costle, 650 F.2d 579, 11 ELR 20836 (5th Cir. 1981)). 16. Id. (citing Virginia v. EPA, 108 F.3d 1397, 27 ELR 20718 (D.C. Cir. 1997); Fla. Power , 650 F.2d at 587-89). 17. Id. (citing Train v. NRDC, 421 U.S. 60 (1975); Virginia , 108 F.3d 139......
-
Interstate Air Pollution Control Using Economic-Based Air Pollution Controls
...states. EPA, in the past, was reluctant to use this provi- 138. 42 U.S.C. §7410(a)(2)(D), CAA §110(a)(2)(D). 139. See Virginia v. EPA, 108 F.3d 1397, 1406, 27 ELR 20718 (D.C. Cir. 1997), modiied , 116 F.3d 499, 27 ELR 21380 (D.C. Cir. 1997); Train v. Natural Resources Defense Council, 421 U......
-
Introduction to Air Pollution
...177. 42 U.S.C. §7511c, CAA §184. 178. Id . §7506a, CAA §176A . 179. Id . §§7410(k)(5) & 7511c(c)(5), CAA §§110(k)(5) & 184(c) (5). 180. 108 F.3d 1397, 27 ELR 20718 (D.C. Cir. 1997), modiied , 116 F.3d 1397, 27 ELR 21380 (D.C. Cir. 1997). 175. 265 F.3d 426 (6th Cir. 2001). Introduction to Ai......