Mississippi v. Envtl. Prot. Agency

• Citation: 723 F.3d 246
• Decision Date: 23 July 2013
• Docket Number: 08–1206.,08–1204,08–1203,08–1202,No. 08–1200,08–1200
• Parties: STATE of Mississippi, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

723 F.3d 246

STATE of Mississippi, Petitioner

v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 08–1200, 08–1202, 08–1203, 08–1204, 08–1206.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 16, 2012.

Decided July 23, 2013.

On Petition for Review of a Final Rule Issued by the United States Environmental Protection Agency.

F. William Brownell argued the cause for State of Mississippi and Industry Petitioners. With him on the briefs were Allison D. Wood, Lucinda Minton Langworthy, Harold E. Pizzetta, III, Special Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Robert R. Gasaway, Jeffrey Bossert Clark, and William H. Burgess.

David S. Baron argued the cause for Environmental Petitioners. With him on the briefs was Seth L. Johnson.

Michael J. Myers, Assistant Attorney General, Office of the Attorney General for the State of New York, argued the cause for State Petitioners. With him on the briefs were Eric T. Schneiderman, Attorney General, Barbara D. Underwood, Solicitor General, Morgan A. Costello, Assistant Attorney General, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, Nicholas Stern, Deputy Attorney General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Kimberly P. Massicotte and Scott Koshwitz, Assistant Attorneys General, Joseph R. Biden, III, Attorney General, Office of the Attorney General for the State of Delaware, Valerie M. Satterfield, Deputy Attorney General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Gerald T. Karr, Senior Assistant Attorney General, William J. Schneider, Attorney General, Office of the Attorney General for the State of Maine, Gerald D. Reid, Assistant Attorney General, Douglas F. Gansler, Attorney General, Office of the Attorney General for the State of Maryland, Roberta R. James, Assistant Attorney General, Martha Coakley, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Carol Iancu, Assistant Attorney General, Michael A. Delaney, Attorney General, Office of the Attorney General for the State of New Hampshire, K. Allen Brooks, Assistant Attorney General, Gary K. King, Attorney General, Office of the Attorney General for the State of New Mexico, Stephen R. Farris, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul S. Logan, Assistant Attorney–in–Charge, Peter Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Irvin B. Nathan, Attorney General, Office of the Attorney General for the District of Columbia, Amy E. McDonnell, Deputy General Counsel, and Christopher King. William L. Pardee, Assistant Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts at the time the brief was filed, Tricia K. Jedele, Special Assistant Attorney General, Office of the Attorney General for the State of Rhode at the time the brief was filed, Maureen Smith, Senior Assistant Attorney General, Office of the Attorney General for the State of Rhode Island, Donna M. Murasky, Deputy Solicitor, Office of the Attorney General for the District of Columbia, and Katherine Kennedy entered appearances.

Richard A. Wegman and Harold G. Bailey, Jr. were on the brief for amicus curiae Province of Ontario in support of petitioners State of New York, et al. and petitioners American Lung Association, et al.

Madeline Fleisher, Attorney, and David J. Kaplan, Senior Attorney, U.S. Department of Justice, argued the causes for respondent. With them on the brief was John Hannon, Attorney, U.S. Environmental Protection Agency.

David S. Baron and Seth L. Johnson were on the brief for Environmental Intervenors.

F. William Brownell, Allison D. Wood, Lucinda Minton Langworthy, Robert R. Gasaway, Jeffrey Bossert Clark, and William H. Burgess were on the brief for industry intervenor-respondents Ozone NAAQS Litigation Group, et al. in support of respondent. Duane J. Desiderio entered an appearance.

Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

In this opinion, we consider several challenges to the Environmental Protection Agency's most recent revisions to the primary and secondary National Ambient Air Quality Standards for ozone. For the reasons given below, we deny the petitions, except with respect to the secondary ozone standard, which we remand for reconsideration.

I.

The Clean Air Act directs EPA to establish and periodically review and revise primary and secondary National Ambient Air Quality Standards (“NAAQS”) for certain pollutants the “emissions of which ... cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7408(a)(1)(A). Under section 109(b)(1), primary NAAQS are to be set at levels “the attainment and maintenance of which in the judgment of the Administrator, ... allowing an adequate margin of safety, are requisite to protect the public health.” Id. § 7409(b)(1). Under section 109(b)(2), secondary NAAQS “shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator ... is requisite to protect the public welfare from any known or anticipated adverse effects.” Id. § 7409(b)(2). The Act provides that the public welfare protected by secondary NAAQS includes “effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being.” Id. § 7602(h).

“Once EPA establishes NAAQS for a particular pollutant, the standards become the centerpiece of a complex statutory regime aimed at reducing the pollutant's atmospheric concentration.” American Trucking Ass'ns v. EPA (“ ATA III ”), 283 F.3d 355, 358–59 (D.C.Cir.2002). EPA must “complete a thorough review” of each NAAQS at five-year intervals and “make such revisions ... as may be appropriate.” 42 U.S.C. § 7409(d)(1). Pursuant to section 109(d)(2), the Clean Air Scientific Advisory Committee (“CASAC”) must periodically review NAAQS and “recommend to [EPA] any new [NAAQS] and revisions of existing criteria and standards as may be appropriate.” Id. § 7409(d)(2)(A)-(B). In proposing to issue new NAAQS or revise existing ones, EPA must “set forth or summarize and provide a reference to any pertinent findings, recommendations, and comments by [CASAC]” and explain the reasons for any “important” divergences from CASAC's recommendations. Id. § 7607(d)(3), (6).

These consolidated cases concern the NAAQS for ozone (O3). Ozone is a colorless, odorless gas that is not a direct product of human activity but instead forms when other atmospheric pollutants react in the presence of sunlight. ATA III, 283 F.3d at 359. EPA has identified several health effects linked to ozone, including decreased lung function and respiratory symptoms. Proposed National Ambient Air Quality Standards for Ozone (“2007 Proposed Rule”), 72 Fed.Reg. 37,818, 37,827 (July 11, 2007). EPA has also found that ozone is associated with more serious health effects such as increased asthma medication use, emergency department visits, and hospital admissions. See id. at 37,827–29, 37,832. Furthermore, EPA has determined that ozone has a broad array of effects on trees, vegetation, and crops and can indirectly affect other ecosystem components such as soil, water, and wildlife. Id. at 37,883.

EPA last revised the ozone NAAQS in 1997, instituting an “8–hour” primary standard—based on the annual fourth-highest daily maximum 8–hour average ozone concentration—of 0.08 parts per million. National Ambient Air Quality Standards for Ozone (“1997 Final Rule”), 62 Fed.Reg. 38,856, 38,873 (July 18, 1997). EPA also set the secondary NAAQS to be identical to this primary standard in both form (measured over an 8–hour period) and level (0.08 ppm). Id. at 38,877–78. In American Trucking Associations v. EPA, 175 F.3d 1027 (D.C.Cir.1999), several parties challenged these revisions, as well as the NAAQS for particulate matter that EPA had issued at the same time. After the Supreme Court reversed this court's conclusion that the Clean Air Act unconstitutionally delegated Congress's legislative authority, see Whitman v. American Trucking Ass'ns, 531 U.S. 457, 473–76, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001), we rejected all of petitioners' challenges to both the primary and secondary ozone NAAQS. ATA III, 283 F.3d at 378–80.

EPA initiated the current review of the ozone NAAQS in 2000. Proceeding under a schedule adopted by consent decree, and after receiving significant public comment on proposed changes, EPA issued revised primary and secondary standards on March 27, 2008. National Ambient Air Quality Standards for Ozone (“2008 Final Rule”), 73 Fed.Reg. 16,436 (Mar. 27, 2008). In reaching its final decision, EPA examined “the entire body of evidence relevant to examining associations between exposure to ambient O3 and a broad range of health endpoints.” Id. at 16,439. Of particular relevance here, EPA emphasized new clinical studies, including human exposure studies, showing respiratory effects at ozone levels below 0.08 ppm. Id. at 16,449–50, 16,470–71. EPA also cited new epidemiological evidence suggesting associations between “serious morbidity outcomes” and ozone exposure at levels below 0.08 ppm, as well as risk assessments estimating the effects of various levels of ozone on the population. Id. at 16,446, 16,450–51, 16,471–72. On the basis of this evidence, EPA concluded that the existing 0.08 ppm primary standard was not requisite to protect the public health with an adequate margin of safety. Id. at 16,470–71.

Assessing the...