Environmental Defense v. U.S. E.P.A.

• Decision Date: 19 May 2004
• Docket Number: Docket No. 02-4107.
• Citation: 369 F.3d 193
• Parties: ENVIRONMENTAL DEFENSE, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency, Respondents, State of New York, Intervenor.
• Court: U.S. Court of Appeals — Second Circuit

369 F.3d 193

ENVIRONMENTAL DEFENSE, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency, Respondents State of New York, Intervenor.

Docket No. 02-4107.

United States Court of Appeals, Second Circuit.

Argued November 6, 2003.

Decided May 19, 2004.

COPYRIGHT MATERIAL OMITTED

David S. Baron, Earthjustice, Washington, DC, for Petitioner Environmental Defense.

Pamela S. Tonglao, U.S. Department of Justice, Washington, DC (Thomas L. Sansonetti, Assistant Attorney General, U.S. Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, Washington, DC; Howard J. Hoffman, Jan Tierney, U.S. Environmental Protection Agency, Office of General Counsel, Washington, DC, of counsel), for Respondent U.S. Environmental Protection Agency.

Gordon J. Johnson, Deputy Bureau Chief, New York, New York (Eliot Spitzer, Attorney General of the State of New York, Marion R. Buchbinder, Deputy Solicitor General, New York State Department of Law, Environmental Protection Bureau, New York, New York, of counsel), for Intervenor State of New York.

Before: CARDAMONE, SOTOMAYOR, and KATZMANN, Circuit Judges.

CARDAMONE, Circuit Judge.

This case concerns the air we breathe. All people rightfully believe that they are entitled to nothing less than the common liberty of smogless air. On this appeal, we review the New York metropolitan area's efforts towards that goal.

To put this case in context, and drawing on legislative history, we essay a very brief summary of what the legislative and the executive branches of government have aimed to accomplish since 1963 when Congress enacted the Clean Air Act, the first modern environmental law. Testimony in 1965 before legislative committees revealed worsening air pollution problems resulting from motor vehicles and stationary sources burning sulfur-bearing fuels. See S.Rep. No. 101-228, at 1 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3387. The consequential health problems to America are serious and pervasive because we have no choice but to breathe the air around us regardless of whether it is clean or polluted. S.Rep. No. 101-228, at 3.

In 1989 over half the U.S. population was breathing air considered unhealthful by medical researchers despite the 1977 amendments to the Clear Air Act. Id. So the 1963 Act was amended again in 1990, with the goal of enhancing the quality of our nation's air resources. The statute enumerates six criteria pollutants for which the Environmental Protection Agency must establish ambient air quality standards that limit the maximum concentration of each pollutant to the level that protects the public health. The six criteria pollutants are: ozone, lead, sulfur dioxide, particulates, nitrogen dioxide, and carbon monoxide. We deal on this appeal with ozone.

Before us is a petition to review final action taken by the United States Environmental Protection Agency (EPA or agency). On February 4, 2002 the agency approved a revision to New York's State Implementation Plan (state plan or plan) which demonstrated the state's ability to meet required air quality standards for ozone pollution by the applicable attainment date. See Approval and Promulgation of Implementation Plans, New York, 67 Fed.Reg. 5170 (Feb. 4, 2002) (codified at 40 C.F.R. § 52.1683 (2003)). Petitioner Environmental Defense (petitioner) challenges several provisions of the state plan as being in contravention of the Clean Air Act and EPA regulations.

BACKGROUND

A. The Statutory Framework

The Clean Air Act (Act), 42 U.S.C. §§ 7401 et seq. (2000), establishes a comprehensive regulatory scheme designed to promote public health by enhancing the nation's air quality. See § 7401(b)(1). The Act charges EPA with identifying air pollutants and with establishing National Ambient Air Quality Standards (air quality standards) that specify the maximum permissible concentrations of those pollutants in the ambient air. Id. §§ 7408-09. EPA has promulgated air quality standards for various pollutants, including ozone. 40 C.F.R. § 50.9(a).

Although this federal agency is responsible for promulgating air quality standards, the primary responsibility for meeting these standards rests with the states. 42 U.S.C. § 7407(a). The Act requires each state to discharge that responsibility by formulating a plan — to be approved by EPA after reasonable notice and opportunity for comment — which demonstrates a state's ability to attain and maintain the required level of air quality in each control region within the state. § 7410.

A state plan under the Clean Air Act must contain enforceable pollution control measures with defined timetables for compliance, as well as a program to implement and enforce those measures. § 7410(a)(2). The Act lists additional detailed requirements to limit emissions and assure that the state has adequate resources and authority to carry out its plan. Id. Air quality control regions that are classified as ozone nonattainment areas are subject to several additional requirements, such as enhanced monitoring and an attainment demonstration. §§ 7511, 7511a. Despite the requirements of the Act, states have considerable leeway in selecting the particular methods and programs they will use to achieve compliance with the national standards. See Union Elec. Co. v. EPA, 427 U.S. 246, 266, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976) ("So long as the national standards are met, the State may select whatever mix of control devices it desires....").

EPA identifies areas, known as air quality control regions, that exceed the standards for a particular pollutant and categorizes those regions as "nonattainment" areas. 42 U.S.C. § 7407(d). Ozone nonattainment areas are further classified as marginal, moderate, serious, severe, or extreme, depending on the extent of the ozone problem. § 7511(a). The greater New York City metropolitan area, which includes portions of New York, Connecticut, and New Jersey,¹ is an air quality control region and has been labeled since 1990 as a severe ozone nonattainment area due to its high levels of ozone. 40 C.F.R. § 81.333. The plan at issue in this litigation is New York's plan for that portion of the air quality control region that is within the state of New York.

Several of the Act's provisions are central to this petition. First, each plan for a severe ozone nonattainment area must contain an "attainment demonstration" by which a state demonstrates that it will achieve the air quality standards by the applicable attainment date. 42 U.S.C. § 7511a(c)(2)(A), (d). This demonstration "must be based on photochemical grid modeling or any other analytical method determined by the Administrator, in the Administrator's discretion, to be at least as effective." § 7511a(c)(2)(A).

Photochemical grid modeling is a sophisticated computerized method of predicting what ozone levels will be in the future. The model creates a three-dimensional grid over the entire control region and analyzes how emissions from various sources combine in the atmosphere to create pollutants such as ozone. Photochemical reactions can produce ozone when oxides of nitrogen (NOx) and volatile organic compounds (VOCs) are released into the air and combine with sunlight. See 40 C.F.R. pt. 58 app. D. § 2.5. Ozone production is affected by a variety of factors such as temperature, wind, and emissions levels. By manipulating other variables like meteorology, terrain, predicted population growth, and the effect of planned emissions reductions, the model attempts to predict ambient ozone concentrations on the applicable attainment date. See 1000 Friends of Maryland v. Browner, 265 F.3d 216, 220-21 n. 4 (4th Cir.2001).

In addition to the attainment demonstration, the state plan must contain "enforceable emission limitations, and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment." 42 U.S.C. § 7502(c)(6). This section of the Act sets forth the degree of specificity required of a state plan's provisions, and requires that the plan provide for attainment of the standards by a specific deadline, which for the New York City area is November 15, 2007. § 7511(a)(1), (2).

B. New York's Plan

Although New York submitted a plan in the past, it was required to revise that plan to comply with the Clean Air Act's 1990 amendments. The present dispute concerns New York's 1998 submission of its one-hour ozone attainment demonstration for the New York City air quality control region. Approval and Promulgation of Implementation Plans, New York, 64 Fed.Reg. 70,364, 70,375 (proposed Dec. 16, 1999). EPA's one-hour standards for ozone — the maximum average concentration of ozone measured over a one-hour period — is 0.12 parts per million (ppm). 40 C.F.R. § 50.9. For models using three digits, EPA uses rounding conventions to permit up to 124 parts per billion (ppb).²

New York's attainment demonstration used a type of EPA-approved photochemical grid modeling called the Urban Airshed Model to predict the concentration of ozone levels in 2007, following EPA's protocols in the application and validation of the model. 40 C.F.R. pt. 51 app. W. Using meteorological data from two extreme ozone events in 1988 and 1991, New York's model predicted that comparable weather events in 2007 would create measurements of 171 ppb based on the 1988 conditions and 169 ppb based on the 1991 conditions. Each of these results significantly exceeds the maximum permissible level of 124 ppb.

Recognizing that these results were too high and believing that the Urban Airshed Model contained inaccuracies that tended to produce high results, New York applied weight of the evidence analysis to adjust the high test results. Weight of the evidence...