Natural Res. Def. Council v. Envtl. Prot. Agency, 16-1413
| Citation | 896 F.3d 459 |
| Decision Date | 20 July 2018 |
| Docket Number | No. 16-1413,16-1413 |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL and Sierra Club, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Andrew Wheeler, Respondents American Petroleum Institute, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Margaret T. Hsieh, New York, NY, argued the cause for petitioners. With her on the briefs were Sanjay Narayan, Oakland, CA, John Walke, Washington, DC, and Emily K. Davis. Nancy S. Marks entered an appearance.
Sue Chen, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief was Jeffrey H. Wood, Acting Assistant Attorney General.
Aaron M. Flynn and Lucinda Minton Langworthy, Washington, DC, were on the brief for intervenor-respondent.
Caroline Lobdell, Portland, OR, was on the brief for amici curiae National Cattlemen’s Beef Association, et al. in support of respondents.
Before: Griffith and Katsas, Circuit Judges, and Edwards, Senior Circuit Judge.
The Clean Air Act calls upon the Environmental Protection Agency to protect air quality by enforcing state and local limits on the amount of pollution. The agency need not count against those limits pollution caused by "exceptional events." In this case, Natural Resources Defense Council and Sierra Club challenge a rule the agency uses to determine whether an event caused by recurring activity is "natural," and thus "exceptional," or "caused by human activity," and thus not. 42 U.S.C. § 7619(b)(1)(A)(iii). We think the agency’s rule is permitted by the Clean Air Act.
To "protect the public health," 42 U.S.C. § 7409(b)(1), the Clean Air Act (the "Act") established a nationwide policy for limiting air pollution on the state and local level, id. § 7410. The Act directs the Environmental Protection Agency (EPA) to set uniform levels of concentrations of various pollutants, National Ambient Air Quality Standards (NAAQS), that local areas must not exceed. Id. § 7409. Each state must earn EPA’s approval of a state implementation plan (SIP), which commits the state to recording levels of specified pollutants using a network of air-quality monitors. Id. § 7410(a). By recording the concentration levels of these pollutants, the monitors identify areas that exceed the NAAQS. States report pollutant levels to EPA quarterly and receive from the agency "attainment" designations when the levels are below the NAAQS and "nonattainment" designations, accompanied by additional air-quality regulations, when the levels exceed the NAAQS. Id. § 7407; see also, e.g. , 40 C.F.R. § 50.6 ().
Since 1977, EPA has recognized that "[f]ederal, [s]tate, and local air pollution control officials have expressed a great deal of concern" that counting emissions caused by "exceptional events" inflates reported levels of pollutants, which sometimes pushes an area otherwise in attainment to be designated as nonattainment. EPA, EPA-450/4-86-007, Guideline on the Identification and Use of Air Quality Data Affected by Exceptional Events 1 (1986). To avoid this, EPA suggested in a series of informal guidelines that state and federal agencies need not include in their pollution reports those pollutants emitted from exceptional events. See, e.g. , EPA, OAPQS No. 1.2-008, Guideline for the Interpretation of Air Quality Standards (1977). The agency considered events to be exceptional if "they are not expected to recur routinely at a given location, or they are possibly uncontrollable or unrealistic to control through the [SIP] process." EPA-450/4-86-007 at 1. In 2005, Congress added this practice to the Act. Act of Aug. 10, 2005, Pub. L. No. 109-59, sec. 6013(a), § 319, 119 Stat 1144, 1882-884 () ("Air quality monitoring data influenced by exceptional events."). Since then, EPA has had statutory authority to exclude from a state’s reported pollutant levels emissions that result from exceptional events. Id.
The Act sets out several requirements that events must satisfy to be exceptional. Id. § 7619(b)(1)(A). However, one of those requirements applies only to events "caused by human activity" and not "natural event[s]." Id. § 7619(b)(1)(A)(iii) (). Through notice-and-comment rulemaking, EPA proposed that "natural events" include events that are caused by both natural and human activity, so long as such human activity complies with relevant environmental regulations. Treatment of Data Influenced by Exceptional Events, 80 Fed. Reg. 72,840, 72,854 (Nov. 20, 2015). Natural Resources Defense Council and Sierra Club (together, the "environmental groups") objected to the definition, arguing that an event caused by human activity cannot be a natural event. EPA replied that "there is not always a bright line" between natural and human-caused events, J.A. 135, and adopted the definition as a final rule, Treatment of Data Influenced by Exceptional Events, 81 Fed. Reg. 68,216 (Oct. 3, 2016) ("2016 Rule").
The environmental groups filed a timely petition for review in our court,1 and we have jurisdiction to review the 2016 Rule for compliance with the Act. See 42 U.S.C. § 7607(b)(1). The American Petroleum Institute (API) moved to intervene on behalf of EPA but failed to show the required Article III standing. See Deutsche Bank National Trust Co. v. FDIC , 717 F.3d 189, 193 (D.C. Cir. 2013). API claims representational standing,2 API Mot. to Intervene 6 n.2, but that requires "specifically identify[ing] members who have suffered the requisite harm," Chamber of Commerce of the U.S. v. EPA , 642 F.3d 192, 199 (D.C. Cir. 2011)(citations and internal quotation marks omitted). Nowhere in its motion or brief does API identify a single member of its organization or support with evidence its vague assertion that an adverse result in this case will injure any member. Because API failed to establish the constitutional standing required to participate as an intervenor, we instead grant it the status of amicus curiae. See Fed. R. App. P. 29(a) ; see also Old Dominion Elec. Coop. v. FERC , 892 F.3d 1223, 1232-34 (D.C. Cir. 2018) ; Rio Grande Pipeline Co. v. FERC , 178 F.3d 533, 539 (D.C. Cir. 1999).
We now consider whether the Act’s exceptional-event provision permits EPA to attribute emissions to natural causes when they were also caused by regulated human activity.
The Act allows areas to keep their attainment designations when their pollutant levels exceed the NAAQS so long as those emissions resulted from an exceptional event. An exceptional event is one that "affects air quality," is "not reasonably controllable or preventable," and is "caused by ... activity that is unlikely to recur at a particular location." 42 U.S.C. § 7619(b)(1)(A). But even a recurring event can be "exceptional" if it is a "natural event." Id. § 7619(b)(1)(A)(iii).
The Act does not give a definition for "natural event," so EPA defined it in the 2016 Rule:
[A natural event is] an event and its resulting emissions, which may recur at the same location, in which human activity plays little or no direct causal role. For purposes of the definition of a natural event, anthropogenic sources that are reasonably controlled shall be considered to not play a direct role in causing emissions.
81 Fed. Reg. at 68,277 (codified at 40 C.F.R. § 50.1(k) ). In other words, to determine whether a recurring event is natural, and thus exceptional, EPA looks at the activities that caused the emissions. See id. at 68,232 (). When making this decision, EPA will disregard contributions to the emissions made by human activities, or "anthropogenic sources," that "are reasonably controlled" by complying with emissions regulations.3 As a consequence, an event is natural if it resulted from at least some natural activity and any amount, no matter how significant, of reasonably controlled human activity. See id. at 68,231 ().
According to the environmental groups, this approach stretches the meaning of "natural event" beyond what the text of the Act can bear. They concede that, in some circumstances, the Act permits EPA to classify an event and its resulting emissions as natural even though human activity played a small role. However, they contend that EPA must count, for the purposes of characterizing an event as natural, the role played by both types of human activity—that which complies with environmental regulations and that which does not.
We review EPA’s definition of natural event under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) : Sierra Club v. EPA , 536 F.3d 673, 677 (D.C. Cir. 2008) (citing Chevron , 467 U.S. at 842-43, 104 S.Ct. 2778 ).
At step one, we consider whether the Act issued unambiguous instructions for distinguishing natural events from events caused by human activity. Outside its statutory context, "natural" ordinarily means something unaffected by human activity. See, e.g. , Merriam-Webster’s Collegiate Dictionary 774 (10th ed. 1997) (defining natural as "growing without human care ... existing in or produced by nature: not artificial"); Oxford English Dictionary Online, http://www.oed.com/view/Entry/125333 (3d ed. 2003) (defining natural as "[f...
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