Natural Res. Def. Council v. Envtl. Prot. Agency & Gina Mccarthy, No. 12–1321.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSRINIVASAN
Citation777 F.3d 456
PartiesNATURAL RESOURCES DEFENSE COUNCIL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Respondents.
Docket NumberNo. 12–1321.
Decision Date23 December 2014

777 F.3d 456

NATURAL RESOURCES DEFENSE COUNCIL, Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Respondents.

No. 12–1321.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 22, 2014
Decided Dec. 23, 2014


Petition granted and implementation rule vacated.

Randolph, Senior Circuit Judge, filed a dissenting opinion.

[777 F.3d 457]

On Petition for Review of Final Administrative Action of the United States Environmental Protection Agency.
Seth L. Johnson argued the cause for petitioner.
With him on the briefs were David S. Baron, and Robert Yuhnke.

Christopher Kilian and Caitlin Peale were on the brief for amicus curiae Conservation Law Foundation in support of petitioner.


Kenneth C. Amaditz, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Jan M. Tierney, Attorney, U.S. Environmental Protection Agency.
Before: TATEL and SRINIVASAN, Circuit Judges, and RANDOLPH, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge SRINIVASAN.
Dissenting opinion filed by Senior Circuit Judge RANDOLPH. SRINIVASAN, Circuit Judge:

Under the Clean Air Act, the Environmental Protection Agency promulgates National Ambient Air Quality Standards for air pollutants. The Act calls for EPA periodically to reconsider those standards. In 2008, EPA revised and strengthened the standards for ozone.

This case concerns two challenges to EPA's regulations implementing the more stringent 2008 ozone standards. First, EPA allowed affected regions more time to attain the new ozone standards—roughly a one-third increase in time for certain areas, amounting to an additional year—as compared with the previous revision. Second, EPA revoked certain requirements, known as transportation conformity requirements, applicable to areas that had yet to attain governing ozone standards or that had recently come into attainment but remained under obligations aimed to prevent any reversion to nonattainment status. The transportation conformity requirements obligate affected regions to assure that any proposed project to develop transportation infrastructure—potentially resulting in significantly increased emissions—will align with the maximum emissions levels established in EPA-approved plans for meeting air quality standards.

We conclude that both challenged aspects of EPA's regulations implementing the 2008 ozone standards exceed the agency's authority under the Clean Air Act. First, with regard to the attainment deadlines, all statutory indications militate

[777 F.3d 458]

against allowing the agency's lengthening of the periods for achieving compliance with revised air quality standards. Indeed, the last time EPA issued revised standards for ozone, EPA itself declined to extend the attainment periods in essentially the same way it now proposes, concluding that such an adjustment could not be squared with the statute. Second, with regard to the revocation of transportation conformity requirements, the terms of the statute straightforwardly require maintaining those requirements for affected areas. If it were otherwise, a region that had yet to demonstrate an enduring ability to meet ozone standards would be free to undertake transportation projects that would increase emissions substantially beyond the levels permitted in the area's approved air-quality plan, undercutting the Act's objectives. Because we find that the EPA's challenged implementation rules exceed the agency's authority under the Clean Air Act, we vacate the pertinent portions of EPA's regulations.

I.
A.

1. The Clean Air Act (CAA), 42 U.S.C. §§ 7401 et seq., requires EPA to publish a list of air pollutants that “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7408(a)(1)(A); see EPA v. EME Homer City Generation, L.P., ––– U.S. ––––, 134 S.Ct. 1584, 1594, 188 L.Ed.2d 775 (2014). For each such pollutant, EPA must issue a “primary” National Ambient Air Quality Standard (NAAQS), specifying the level of air quality “requisite to protect the public health” while “allowing an adequate margin of safety.” 42 U.S.C. § 7409(b)(1). EPA must also promulgate a “secondary” NAAQS, setting the “level of air quality ... requisite to protect the public welfare.” 42 U.S.C. § 7409(b)(2).

“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.” Am. Trucking Ass'ns, Inc. v. EPA ( ATA III ), 283 F.3d 355, 358–59 (D.C.Cir.2002). EPA, in coordination with state governments, divides the country geographically into “[a]ir quality control region[s].” 42 U.S.C. § 7407. EPA then designates each region as either (i) “attainment,” if the region's atmospheric concentration of the pollutant falls below the allowed level; (ii) “nonattainment,” if it does not; or (iii) “unclassifiable,” if there is insufficient information. See id. § 7407(d)(1)(A). Each state must then enact a state implementation plan (SIP) that “provides for implementation, maintenance, and enforcement of [the] primary” NAAQS. Id. § 7410(a)(1). States must submit their SIPs for EPA approval, and the agency can require revisions or impose a federal implementation plan if a SIP proves inadequate. See id. § 7410(c)(1).

When a region's atmospheric pollutant concentration changes, EPA may alter the area's designation. For instance, EPA can redesignate an attainment area to nonattainment when the pollutant concentration rises. See id. § 7407(d)(3). The statute permits redesignation in the other direction, from nonattainment to attainment, only upon satisfaction of several additional requirements. See id. § 7407(d)(3)(E). EPA must determine, inter alia, that “the improvement in air quality is due to permanent and enforceable reductions in emissions.” Id. § 7407(d)(3)(E)(iii). EPA must also approve a “maintenance plan” to ensure that the area remains in compliance with the standard. See id. § 7407(d)(3)(E)(iv). Maintenance requirements remain in effect for twenty years after redesignation. See id. § 7505a(a)-(b). EPA refers to former nonattainment

[777 F.3d 459]

areas that have been redesignated to attainment, but that remain subject to maintenance requirements, as “maintenance areas.”

Both maintenance areas and nonattainment areas must adhere to the Clean Air Act's transportation conformity requirements. See id. § 7506(c). Those requirements condition federal funding and approval of an area's proposed transportation projects on their compliance with applicable SIPs. The conformity requirements mandate that emissions resulting from covered projects will not interfere with NAAQS attainment. See id.

The Clean Air Act calls for EPA to conduct a “thorough review” of each NAAQS every five years and “make such revisions ... and promulgate such new standards as may be appropriate.” Id. § 7409(d)(1). Although EPA may revise a NAAQS to “relax[ ]” the standard, the Act contains an anti-backsliding provision which requires the agency to “promulgate requirements” that “provide for controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation.” Id. § 7502(e). The anti-backsliding provision presents one example of how the Act “reflects Congress's intent that air quality should be improved until safe and never allowed to retreat thereafter.” South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 900 (D.C.Cir.2006).

2. This case concerns the NAAQS for ground-level ozone (O3), a key component of urban smog. While ozone is an “essential presence in the atmosphere's stratospheric layer,” exposure to ozone at ground level “can cause lung dysfunction, coughing, wheezing, shortness of breath, nausea, respiratory infection, and in some cases, permanent scarring of the lung tissue.” South Coast, 472 F.3d at 887. EPA has determined that ozone also “has a broad array of effects on trees, vegetation, and crops and can indirectly affect other ecosystem components such as soil, water, and wildlife.” Mississippi v. EPA, 744 F.3d 1334, 1340 (D.C.Cir.2013).

Ground-level ozone does not directly result from human activity. It instead arises from the reaction of other atmospheric pollutants (known as precursors) in the presence of sunlight. ATA III, 283 F.3d at 359. Ozone's precursor pollutants primarily come from emissions produced by cars, power plants, and chemical solvents. Id.

EPA classifies areas as having differing “ozone seasons”: the sunnier months of the year when ozone forms at higher rates. In most parts of the country, ozone seasons last from March or April until September or October. Other areas possess longer, or even year-round, ozone seasons. See 40 C.F.R. pt. 58, app. D, tbl.D–3 (Mar. 18, 2013); see also Implementation of the 2008 NAAQS for Ozone: Nonattainment Area Classifications Approach, Attainment Deadlines and Revocation of the 1997 Ozone Standards for Transportation Conformity Purposes, 77 Fed.Reg. 30,160, 30,166 nn. 16–17 (May 21, 2012).

B.

The history of Congress's and EPA's efforts to establish air quality standards for ozone—and of the judicial responses to those efforts—provides important context for considering the issues presented by this case.

1. In 1979, EPA promulgated primary and secondary NAAQS for ozone with a limit of 0.12 parts per million (ppm)—known as the “one-hour” standards, because they measured average ozone levels over one-hour periods. See Revisions to the NAAQS for Photochemical Oxidants, 44 Fed.Reg. 8202, 8202 (Feb. 8, 1979).

[777 F.3d 460]

The Clean Air Act as amended in 1977 required states to achieve compliance with the one-hour ozone NAAQS by December 31, 1987. See South Coast, 472 F.3d at 886. The statute afforded EPA and the states “broad discretion” as to the means of compliance. Id. at 886–87. That discretionary approach ultimately accomplished “little to reduce the dangers of key contaminants.” Id. For instance,...

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