Del. Dep't of Natural Res. & Envtl. Control v. Envtl. Prot. Agency, 16-1230

• Decision Date: 10 July 2018
• Docket Number: No. 16-1230,16-1230
• Citation: 895 F.3d 90
• Parties: DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

895 F.3d 90

DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Petitioner,

v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 16-1230

United States Court of Appeals, District of Columbia Circuit.

Argued October 5, 2017

Decided July 10, 2018

Valerie M. Edge, Deputy Attorney General, Office of the Attorney General for the State of Delaware, argued the cause and filed the briefs for petitioner.

Phillip R. Dupré, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was John C. Cruden, Assistant Attorney General, at the time the brief was filed.

Before: Rogers and Griffith, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Griffith.

The Clean Air Act authorizes the Environmental Protection Agency to set national air-quality standards. The Act also permits the agency to extend the deadline for areas to comply with those standards. Here, the agency granted an extension for a multistate region to comply with national ozone standards. Delaware, one of the four states partially within the multistate region, petitions for review of the agency’s decision. We deny Delaware’s petition.

I

A

The Clean Air Act (the "Act") requires the Environmental Protection Agency (EPA) to identify pollutants that "may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A). Pursuant to that duty, EPA formulates National Ambient Air Quality Standards (NAAQS) that identify the maximum permissible concentrations of these pollutants in the air. See id. §§ 7408 - 09. Ozone is one pollutant for which EPA has promulgated NAAQS. See 40 C.F.R. pt. 50.

Once EPA promulgates new or revised NAAQS, it segments the country into areas for enforcing the NAAQS. Some areas lie within a single state while others encompass portions of two or more states. EPA designates each area as "attainment," "nonattainment," or "unclassifiable" with respect to the NAAQS. 42 U.S.C. § 7407(d)(1)(A), (B). "Attainment" areas meet the relevant NAAQS; "nonattainment" areas violate the NAAQS or contribute to NAAQS violations in a nearby area; and "unclassifiable" areas are those for which EPA lacks sufficient information to determine compliance. Id. § 7407(d)(1)(A)(i)-(iii). EPA further divides ozone nonattainment areas into five subcategories: marginal, moderate, serious, severe, and extreme. Id. § 7511(a)(1).

Once assigned a NAAQS designation, states must adopt and implement "state implementation plans" (SIPs) to attain, maintain, and enforce the NAAQS. Id. § 7410. SIPs adopted by states in nonattainment areas must include measures providing for attainment of the NAAQS "as expeditiously as practicable." Id. § 7502(a)(2)(A), (B). Every area designated as nonattainment for ozone NAAQS must come into attainment within a time period set by the Act, based on the area’s ozone subcategory. Id. § 7511(a)(1). If a nonattainment area for ozone misses its deadline for attainment, EPA generally must bump the area up to the next most urgent subcategory and impose additional regulatory responsibilities on the states composing that area. Id. § 7511(b)(2)(A).

However, the Act also permits EPA to grant extensions for an area to meet its attainment deadline for ozone NAAQS. That provision reads:

Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the "Extension Year") the date specified [in the Act] if—

(A) the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan, and

(B) no more than 1 exceedance of the national ambient air quality standard level of ozone has occurred in the area in the year preceding the Extension Year.

No more than 2 one-year extensions may be issued under this paragraph for a single nonattainment area.

Id. § 7511(a)(5).

B

In 2008, EPA updated the ozone NAAQS. See NAAQS for Ozone, 73 Fed. Reg. 16,436 (Mar. 27, 2008). EPA then designated forty-five regions across the country as nonattainment areas, including the "Philadelphia Area," taking in parts of Delaware, Maryland, New Jersey, and Pennsylvania. EPA classified the area as "marginal nonattainment" and set its attainment date for July 20, 2015.

Around the time of that date, EPA received requests from Maryland, New Jersey, and Pennsylvania for a one-year extension under 42 U.S.C. § 7511(a)(5). In their requests, Maryland and Pennsylvania certified that they had complied with their SIPs. Although Delaware had not submitted any such request, EPA proposed a rule finding the entire Philadelphia Area eligible for a one-year extension. See Determinations of Attainment by the Attainment Date, 80 Fed. Reg. 51,992, 51,996 -97 (Aug. 27, 2015). EPA explained that under § 7511(a)(5), if "any state with jurisdiction over the nonattainment area requests such extension, the Agency will consider granting the request provided that the criteria in [ § 7511(a)(5)(A), (B) ] are met for all of the governing states." In other words, EPA maintained that "application by any State" in § 7511(a)(5) could be satisfied by application of fewer than all states in a multistate nonattainment area. However, EPA also concluded an area could not qualify for an extension unless every state in a nonattainment area—including those that had never submitted a request—complied with its own SIP. Even though Delaware decided not to request an extension, EPA proposed finding that the state had complied with its ozone SIP. See J.A. 19; see also 80 Fed. Reg. at 51,997 n.10.

Before granting the extension, EPA received comments from Delaware and environmental groups. Delaware commented that it "would like to support EPA’s proposal because the only alternative ... appears to be a ‘bump-up’ of portions of Delaware to a moderate nonattainment classification." But Delaware also criticized EPA for focusing on attainment-date extensions instead of taking direct action against ozone emissions from upwind states that Delaware believed were responsible for the Philadelphia Area’s continued inability to reach attainment.

Meanwhile, the environmental groups EarthJustice and Sierra Club argued that EPA’s proposed extension would be unlawful because Delaware had not joined in the request. The groups interpreted § 7511(a)(5) to permit extensions for multistate areas only when every state in the area applies for an extension. The groups highlighted that EPA had previously required unanimity when states in a multistate nonattainment area request a voluntary "bump-up" to a higher nonattainment subcategory. The groups also argued that an extension would be arbitrary and capricious because EPA failed to find that the four Philadelphia Area states had "complied with all requirements and commitments pertaining to the area in [their SIPs]." 42 U.S.C. § 7511(a)(5)(A). Instead, EPA unreasonably relied on self-certifications of compliance made by Maryland and Pennsylvania. Moreover, according to the groups, nothing in the record suggested Delaware or New Jersey was in compliance, and neither claimed it was.

In May 2016, EPA promulgated its final rule granting the Philadelphia Area a one-year extension to meet the 2008 ozone NAAQS. See Determinations of Attainment by the Attainment Date, 81 Fed. Reg. 26,697 (May 4, 2016). EPA addressed each of the environmental groups’ critiques. First, EPA explained that its decision to grant the extension was reasonable because requiring unanimity among affected states for an attainment-date extension is different than requiring unanimity when "bumping up" a classification. See id. at 26,701 -02. In particular, extending an attainment date "imposes no additional obligation upon any state" while a voluntary reclassification "can impose significant new attainment planning and emission reduction obligations." Id. at 26,702.

Furthermore, EPA maintained that it could reasonably rely on Maryland’s and Pennsylvania’s self-certifications of SIP compliance. EPA appealed to the "state and federal partnership in implementing the [Act]" to justify the agency’s reliance on the self-certifications. Id. at 26,704. EPA further indicated that absent any "demonstration that suggests any of the states receiving an attainment date extension are not in compliance with their SIPs ... EPA is disinclined to invalidate the certifications made by the states." Id.

EPA also responded that when states fail to certify their compliance, the agency still has authority under the Act to apply "its own knowledge and expertise" and conduct an independent review. Id. at 26,702. EPA reviewed Delaware’s and New Jersey’s applicable SIPs and determined that no enforcement actions were pending against the states for noncompliance with them. Therefore, EPA concluded that both states had met the compliance requirement of § 7511(a)(5)(A). Id. at 26,703.

In July 2016, Delaware filed a petition for review of EPA’s May 2016 rule with this court, raising essentially the same arguments made by the environmental groups during the rulemaking. We have jurisdiction under the Act. 42 U.S.C. § 7607(b)(1) ; see also Dalton Trucking, Inc. v. EPA , 808 F.3d 875, 879 (D.C. Cir. 2015).

II

On our own motion, we asked the parties to address whether Delaware’s comments during the rulemaking precluded it from obtaining judicial review of EPA’s final rule extending the attainment date for the Philadelphia Area. After hearing argument on the matter, we are persuaded that Delaware may petition this court for review of EPA’s decision.

A petitioner may not "take a position in this court opposite from that which it took below, particularly when its position has prevailed before the agency." S. Pac. Transp. Co. v. ICC , 69 F.3d 583, 588 (D.C. Cir. 1995). Our application of this principle in South Coast Air Quality Management District v. EPA , 472 F.3d 882 (D.C. Cir. 2006), is instructive. Ohio had commented during an EPA rulemaking that the agency’s proposed approach "would be a reasonable...