Murray Energy Corp. v. Envtl. Prot. Agency, 15-1385

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation936 F.3d 597
Docket NumberC/w 15-1392, 15-1490, 15-1491, 15-1494,No. 15-1385,15-1385
Parties MURRAY ENERGY CORPORATION, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent American Lung Association, et al., Intervenors
Decision Date23 August 2019

Seth L. Johnson, Washington, DC, argued the cause for Public Health and Environmental Petitioners. With him on the briefs were Joshua Stebbins, Joshua Berman, David S. Baron, Washington, DC, and Paul Cort.

Dominic E. Draye, Deputy Solicitor General, Office of the Attorney General for the State of Arizona, argued the cause for State Petitioners. With him on the briefs were Mark Brnovich, Attorney General, John R. Lopez, IV, Solicitor General, Keith Miller, Associate Solicitor, Joshua L. Kaul, Attorney General, Office of the Attorney General for the State of Wisconsin, Misha Tseytlin, Solicitor General, Daniel P. Lennington, Assistant Attorney General, Leslie C. Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Lee Rudofsky, Solicitor General, Jamie L. Ewing, Assistant Attorney General, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Steven B. ABeaux@ Jones, Assistant Attorney General, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Margaret I. Olson, Assistant Attorney General, Peter S. Glaser, Carroll W. AMack@ McGuffey, Andy Beshear, Attorney General, Office of the Attorney G eneral for the Co mmonwealth of Ken tucky, Joseph A. Newberg, II, Ass istant Attorney G eneral, Lara Katz , Assistant Attorney General, Office of the Attorney General for the State of New Mexico, Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Priscilla M. Hubenak, Chief, Craig J. Pritzlaff, Assistant Attorney Gen eral, E. Scott Pruitt , Attorney General at the time the brief was filed, Office of the Attorney General for the State of Oklahoma, P. Clayton Eubanks, Deputy Solicitor General, and Sean Reyes, Attorney General, Office of the State of Utah. Mithun Mansinghani, Attorney, Office of the Attorney General for the State of Oklahoma, Lisa M. Mitchell, Assistant Attorney Genera l, Office of the Attorney General for the State of Texas, Oramel H. Skinner, III, Solicitor, Office of t he Attorney General for th e State of Arizona, Sarah Adkins and Samuel R. Flynn, Assistant Attorneys Gen eral, and Gregory T. Dutton, Counsel, Office of the Attorney General for the Commonwealth of Kentucky, Steven C. Kilpatrick, Assistant Attorney General, Office of the Attorney General for the State of Wisconsin, Elizabeth B. Murrill and Harry J. Vorhoff, Assistant Attorneys General, Office of the Attorney General for the State of Louisiana, entered appearances.

James R. Bieke, Washington, DC, argued the cause for Industry Petitioners. With him on the briefs were Roger R. Martella, Joel F. Visser, Scott C. Oostdyk, E. Duncan Getchell, Jr., Michael H. Brady, Thomas A. Lorenzen, Robert J. Meyers, Linda E. Kelly, Quentin Riegel, Leland P. Frost, Michael B. Schon, Elizabeth L. Horner, Lucinda Minton Langworthy, Aaron M. Flynn, Steven P. Lehotsky, Sheldon B. Gilbert, Stacy Linden, and Richard S. Moskowitz. Peter C. Tolsdorf entered an appearance.

Hope M. Babcock, Washington, DC, and Sarah J. Fox were on the brief for amici curiae American Thoracic Society, et al. in support of petitioners Sierra Club, et al.

Thomas J. Ward, Washington, DC, was on the brief for amicus curiae The National Association of Home Builders in support of Industry and State Petitioners.

Justin Heminger, Washington, DC, and Simi Bhat, Trial Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief were John C. Cruden, Assistant Attorney General at the time the brief was filed, and David Orlin, Steven Silverman, and Brian Doster, Attorneys, U.S. Environmental Protection Agency. Jon M. Lipshultz, Attorney, U.S. Department of Justice, entered an appearance.

James R. Bieke, Washington, DC, argued the cause for Industry Respondent-Intervenors. With him on the brief were Roger R. Martella, Joel F. Visser, Lucinda Minton Langworthy, Aaron M. Flynn, Thomas A. Lorenzen, Robert J. Meyers, Stacy Linden, Richard S. Moskowitz, Steven P. Lehotsky, Sheldon B. Gilbert, Linda E. Kelly, Quentin Riegel, Leland P. Frost, Michael B. Schon, Elizabeth Horner, and Leslie A. Hulse. Peter C. Tolsdorf entered an appearance.

Seth L. Johnson, Washington, DC, argued the cause for Health and Environmental Respondent-Intervenors. With him on the brief was David S. Baron. Joshua A. Berman and Joshua R. Stebbins entered appearances.

Jonathan Weiner, Deputy Attorney General, Office of the Attorney General for the State of California, argued the cause for State Amici in support of respondent. With him on the brief were Kamala D. Harris, Attorney General at the time the brief was filed, Robert W. Byrne, Senior Assistant Attorney General, and Gavin G. McCabe, Supervising Deputy Attorney General. Melinda Pilling, Attorney, entered an appearance.

Richard L. Revesz, Denise A. Grab, Jack Lienke, Michael A. Livermore, and Jason A. Schwartz were on the brief for amicus curiae The Institute for Policy Integrity at New York University School of Law in support of respondent.

Before: Griffith, Pillard and Wilkins, Circuit Judges.

Per Curiam:

In this opinion, we consider various challenges to the Environmental Protection Agency's 2015 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, and grandfathering provision, which we vacate.

I. Background
A. Statutory and Procedural Background

Congress enacted the modern version of the Clean Air Act (the "Act"), codified at 42 U.S.C. § 7401 et seq. , in 1970 to control and reduce contaminants responsible for air pollution with the overarching goal to protect human health and the environment. Pursuant to Title I, EPA must establish, publish, and periodically review primary and secondary national ambient air quality standards ("NAAQS") for air pollutants that "may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A). The 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). The 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). Thus, primary NAAQS protect the public health, while the secondary NAAQS protect the public welfare. "Public health" includes adverse health effects for both the population at large and sensitive populations such as children, older adults, and people with asthma

or other lung diseases. The term "public welfare" encompasses a wide variety of effects on soil, plants, wildlife and biota, property damage, aesthetic concerns, and other non-health-related impacts such as hazards to economic values and personal comfort. Id. § 7602(h).

Pursuant to section 109(d) of the Clean Air Act, EPA must complete a "thorough" review of the NAAQS every five years. Id. § 7409(d)(1). During this review, EPA must revise the criteria and standards or promulgate new standards as appropriate. Id. To assist in this process, the Clean Air Scientific Advisory Committee ("CASAC") undertakes an examination of the current air quality criteria, primary NAAQS, and secondary NAAQS, and submits recommendations to EPA for "any new [NAAQS] and revisions of existing criteria and standards as may be appropriate." Id . § 7409(d)(2)(A)-(B). Congress required EPA to take CASAC's recommendations into account when promulgating revised NAAQS and to fully explain its reasons when it departs from CASAC's advice. However, the ultimate decision to revise the NAAQS—and the determination of the new level—rests with the Administrator. Id. § 7407(d)(3).

These petitions concern EPA's promulgation of revised NAAQS related to ozone. Ozone is a colorless gas that occurs both in the Earth's upper atmosphere and at ground level. Although ozone is an "essential presence in the atmosphere's stratospheric layer," ground-level ozone is an air pollutant that is harmful to breathe and damages crops, trees, and other vegetation. S. Coast Air Quality Mgmt. Dist. v. EPA , 472 F.3d 882, 887 (D.C. Cir. 2006) ; see Allied Local & Reg'l Mfrs. Caucus v. EPA , 215 F.3d 61, 66 (D.C. Cir. 2000). Ground-level ozone is not a direct product of human activity, but instead forms when atmospheric pollutants (including nitrogen oxides and volatile organic compounds) react in the presence of sunlight. See Mississippi v. EPA , 744 F.3d 1334, 1340 (D.C. Cir. 2013). These precursor atmospheric pollutants are created primarily from emissions produced by cars, power plants, and chemical solvents. NRDC v. EPA , 777 F.3d 456, 459 (D.C. Cir. 2014).

In 1979, EPA issued primary and secondary NAAQS for ozone with a limit of 0.12 parts per millions (ppm), and a one-hour averaging time. See id . This "one-hour standard" measured average ozone levels over one-hour periods, and EPA would deem an area in compliance with this standard if it did not exceed the level for more than one day per calendar year. Id. EPA next revised the ozone NAAQS in 1997, having determined that no revisions to the standards were necessary in 1993. National Ambient Air Quality Standards for Ozone, 58 Fed. Reg. 13,008 (Mar. 9, 1993). The agency replaced the one-hour, 0.12 ppm standard with a 0.08 ppm standard measured over eight hours. National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38,856 (July 18, 1997). EPA also altered the form...

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