Miss. Comm'n On Envtl. Quality v. Envtl. Prot. Agency

Decision Date02 June 2015
Docket Number13–1030,13–1050,12–1316,13–1051,13–1053,13–1054.,12–1310,12–1312,12–1313,12–1318,12–1317,12–1328,12–1326,12–1322,12–1323,13–1032,Nos. 12–1309,13–1052,13–1046,12–1315,s. 12–1309
PartiesMISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Respondents State of Connecticut, et al., Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

790 F.3d 138

State of Connecticut, et al., Intervenors.

Nos. 12–1309

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 21, 2014.
Decided June 2, 2015.

Valerie Satterfield Edge, Deputy Attorney General, Office of the Attorney General for the State of Delaware, argued the cause for the petitioners Delaware Department of Natural Resources and Environmental Control and the State of Connecticut. George Jepsen, Attorney General, and Kimberly P. Massicotte and Scott N. Koschwitz, Assistant Attorneys General, were with her on brief.

Robin L. Cooley and Robert Ukeiley argued the causes and filed the joint briefs for Environmental Petitioners. James J. Tutchton entered an appearance.

Donna J. Hodges and Reed D. Rubinstein argued the causes for State and County Petitioners. Gary C. Rikard and Mark L. Walters, Assistant Attorneys General, Office of the Attorney General for the State of Texas, were with them on the joint brief. Gregory W. Abbott, Attorney General, Office of the Attorney General for the State of Texas, and Jonathan K. Niermann, Assistant Attorney General, and Mary Ann Poirier entered appearances.

Timothy J. Junk, Deputy Attorney General, Office of the Attorney General for the State of Indiana, argued the cause for the petitioner State of Indiana. Gregory F. Zoeller, Attorney General, was with him on brief.

Roger R. Martella Jr. argued the cause for the Industrial Petitioners. Timothy K. Webster, Ryan C. Morris, David C. Duggins, Matt Paulson, Howard Rubin, Glen Donath, Christopher D. Jackson, William L. Wehrum and Aaron M. Flynn were with him on brief.

Elizabeth B. Dawson and Jessica O'Donnell, Attorneys, United States Department of Justice, argued the causes for the respondent. Robert G. Dreher, Acting Assistant Attorney General, and Jan Tierney, Attorney, United States Environmental Protection Agency, were with them on brief.

Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, Bridget Romano, Utah Solicitor General, Connie S. Nakahara, Assistant Utah Attorney General, Constance E. Brooks, David G. Scott and Bret A. Sumner were on the joint brief for the respondent-intervenors State of Utah, et al. Mark L. Shurtleff, former Attorney General, Office of the Attorney General for the State of Utah, entered an appearance.

Tómas Carbonell and Peter Zalzal were on brief for the respondent-intervenor Environmental Defense Fund. Vickie L. Patton entered an appearance.

Before: GARLAND, Chief Judge, and HENDERSON and SRINIVASAN, Circuit Judges.



The 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.”Id. § 7401(b)(1). At issue in this case is Title I of the Act, which requires the Environmental

790 F.3d 145

Protection Agency (EPA) to promulgate National Ambient Air Quality Standards (NAAQS), thus setting the maximum level of permissible pollutant concentration in the atmosphere. See id. §§ 7408(a)(1), 7409(a)-(b). After the EPA sets the NAAQS, it must determine whether each state is in compliance with these air-quality standards and, in the event of a NAAQS violation, how to establish the geographic boundaries around the non-compliant area. See id. § 7407(d)(1).

In these consolidated petitions, several states, counties, industrial entities and environmental organizations challenge the EPA's determination that certain geographic areas are, or are not, in “attainment” with the EPA's ground-level ozone NAAQS. Id. Some argue that the Act, as applied to them, violates various Constitutional provisions; others argue that the EPA misconstrued the terms of the Act. Virtually every petitioner argues that, for one reason or another, the EPA acted arbitrarily and capriciously in making its final NAAQS designations. But because the EPA complied with the Constitution, reasonably interpreted the Act's critical terms and wholly satisfied—indeed, in most instances, surpassed—its obligation to engage in reasoned decision-making, we deny the consolidated petitions for review in their entirety.


The EPA began the odyssey resulting in these consolidated petitions nearly seven years ago. Along the way, it construed a variety of the Act's provisions, promulgated regulations and issued informal guidance to assist in the collaborative area-designation effort between it and the states. Before discussing the substance of the issues, a brief overview of the Act and the underlying proceedings in this case is in order.

A. The Clean Air Act

Under the Act, the EPA must promulgate NAAQS, which set the maximum ambient, or outdoor, air concentrations for six pollutants that “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7408(a)(1). Once it establishes a NAAQS, the EPA must designate each “area” in the United States as “attainment” or “nonattainment.” See id. § 7407(d)(1)(A)(i)-(ii). Alternatively, the EPA may designate an area as “unclassifiable” if the area “permit[s] no determination given existing data.” Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 26 (D.C.Cir.2009) (citing 42 U.S.C. § 7407(d)(1)(A)(i)-(iii) ). The EPA treats an “unclassifiable” area as if it were in attainment. See 42 U.S.C. § 7471.

Generally speaking, the EPA designates an area that meets the relevant NAAQS as in attainment, while areas that exceed the NAAQS receive a nonattainment designation. See Catawba Cnty., 571 F.3d at 26. But even if an area's ambient air concentration complies with the relevant NAAQS, the EPA nonetheless designates it as nonattainment if it “contributes” to a NAAQS violation in a “nearby area.” See 42 U.S.C. § 7407(d)(1)(A)(i). The Act does not define the terms “contributes,” “nearby” or “area.”

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

790 F.3d 146

Once it receives a state's initial designations, the EPA may either promulgate them as submitted or modify them as it “deems necessary.” Id. § 7407(d)(1)(B)(ii). The Act gives the EPA discretion to change a state's recommended designation, to alter a state's proposed geographic area or both. See id. Although the EPA “has no obligation to give any quantum of deference to a designation that it ‘deems necessary’ to change,” Catawba Cnty., 571 F.3d at 40, it must nonetheless 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 known as “120–day letters.” See Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards, 77 Fed.Reg. 30,088, 30,090 (May 21, 2012) [hereinafter 2008 Designations Rule].

While the EPA has ultimate authority to determine each area's attainment status, each state has “primary responsibility” for ensuring that the geographic areas within its borders either maintain attainment or progress towards it. 42 U.S.C. § 7407(a). Accordingly, once the EPA finalizes its designations, each state must submit to the EPA a State Implementation Plan (SIP) specifying how the NAAQS “will be achieved and maintained.” Id. For areas in attainment, the SIP must simply “contain emission limitations and such other measures as may be necessary ... to prevent significant deterioration of air quality.” Id. § 7471.

For a nonattainment area, however, the Act imposes more stringent requirements. A SIP from a state with a nonattainment area must demonstrate that the state intends 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 an offending area. See id. § 7502(a)(2)(A). For a violation of a primary1 NAAQS, the offending state must reach attainment “as expeditiously as practicable, but no later than 5 years from the date such area was designated nonattainment.” Id. The EPA “may extend the attainment date to the extent [it] determines appropriate” but only “for a period no greater than 10 years from the date of designation as nonattainment.” Id. Taken together, these two requirements often mean that a state with a nonattainment area must implement potentially expensive technology or expensive process changes to reduce pollution levels over a relatively short period of time. If a state fails to reach...

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