Natural Resources Defense Council, Inc. v. Browner, 94-1647

• Decision Date: 27 June 1995
• Docket Number: No. 94-1647,94-1647
• Citation: 57 F.3d 1122
• Parties: , 313 U.S.App.D.C. 37, 64 USLW 2024, 25 Envtl. L. Rep. 21,219 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Carol M. BROWNER, Administrator, Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1122

57 F.3d 1122

40 ERC 2057, 313 U.S.App.D.C. 37, 64

USLW 2024,

25 Envtl. L. Rep. 21,219

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Carol M. BROWNER, Administrator, Environmental Protection

Agency, Respondents.

No. 94-1647.

United States Court of Appeals, District of Columbia Circuit.

Argued May 15, 1995.

Decided June 27, 1995.

On Petition for Review of an Order of the Environmental Protection Agency.

Sharon Buccino, Washington, DC, argued the cause, for petitioner. With her on the briefs was David M. Driesen, Washington, DC. David G. Hawkins, Washington, DC, entered an appearance.

Ronald M. Spritzer, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause, for respondents. With him on the brief were Lois J. Schiffer, Asst. Atty. Gen., and Jan M. Tierney, Atty., E.P.A., Washington, DC.

Before: WALD, ROGERS and TATEL, Circuit Judges.

ROGERS, Circuit Judge:

The 1990 amendments to the Clean Air Act revised the regulatory framework for achieving national air quality goals. Among other changes, the amendments altered the schedule of State Implementation Plan ("SIP") submissions and Environmental Protection Agency ("EPA") responses thereto, and strengthened the sanctions that apply in the event of state noncompliance. Under Sec. 179(a), 42 U.S.C. Sec. 7509(a) (Supp. V 1993), an EPA finding of one of four possible SIP defects will trigger mandatory sanctions unless the state takes corrective action within 18 months. Petitioner Natural Resources Defense Council ("NRDC") challenges an EPA final rule that permits a state to halt the 18-month "sanctions clock," when it is triggered by an EPA finding of incompleteness or nonsubmittal, by submitting a complete plan, even if that plan is ultimately unapprovable due to substantive inadequacies. Because the language of Sec. 179 plainly leads to the approach adopted by EPA, and NRDC has pointed to no persuasive evidence that Congress intended otherwise, we deny the petition for review.

I.

A. Statutory Framework. The Clean Air Act, as amended in 1970 and 1977, ¹ establishes a partnership between EPA and the states for the attainment and maintenance of national air quality goals. See 42 U.S.C. Secs. 7401-7515 (1988 & Supp. V 1993). Under this regime, EPA has set health-based primary "National Ambient Air Quality Standards" ("NAAQS") for six pollutants. See 40 C.F.R. part 50 (1994). ² The states are responsible in the first instance for meeting the NAAQS through state-designed plans that provide for attainment, maintenance, and enforcement of the NAAQS in each air quality control region. Thus, each state determines an emission reduction program for its nonattainment areas, subject to EPA approval, within deadlines imposed by Congress.

In 1990, Congress amended the Act to revise the timing and content of the SIP requirements and provide new incentives and sanctions to encourage state compliance with Clean Air Act obligations. See Clean Air Act of Amendments of 1990, Pub.L. No. 101-549, 104 Stat. 2399. The 1990 amendments extended the Act's attainment deadlines, but added short-term deadlines for many intermediate steps, including SIP submissions. The amendments also created new mandatory sanctions for states that fail to comply with SIP submission and implementation duties.

Section 110 of the Clean Air Act, 42 U.S.C. Sec. 7410, sets forth the basic processes and requirements governing SIP submissions. Within 60 days of the submission, but no later than six months after the submission deadline, EPA must review each submission for completeness. 42 U.S.C. Sec. 7410(k)(1)(B). The Act defines a complete submission as one that contains "the information necessary to enable" EPA to "determine whether the plan submission complies" with the NAAQS requirements. Id. Sec. 7410(k)(1)(A). Pursuant to the Act, EPA has developed criteria for evaluating whether a plan meets the completeness requirement. See 40 C.F.R. Sec. 51.103 & App. V. ³ If EPA finds the plan complete, it has twelve months to determine whether the plan meets the substantive requirements of the Act. 42 U.S.C. Sec. 7410(k)(2). At this stage, EPA evaluates the detailed models for pollution control submitted by states and compares them with the federal standards and attainment deadlines. ⁴ EPA may approve the plan in whole or in part, disapprove the plan, or conditionally approve the plan based on a state commitment to adopt specific enforcement methods. Id. Sec. 7410(k)(3)-(4).

Congress established a number of incentives for states to comply with SIP submission and implementation deadlines. These include mandatory sanctions, discretionary sanctions, and imposition of a Federal Implementation Plan ("FIP"). Of importance here, Sec. 179 requires EPA to impose mandatory sanctions on states that fail to comply with SIP obligations. That provision lists several EPA findings that trigger an 18-month sanctions clock, at the end of which EPA must impose one of two sanctions "unless such deficiency has been corrected." 42 U.S.C. Sec. 7509(a) (emphasis added). The triggering events are: a finding of state failure to make a required plan submission or failure to submit a complete plan; disapproval of a SIP in whole or in part; or a finding of state failure to implement any element of an approved plan. Id. Sec. 7509(a)(1)-(4). Once sanctions have been imposed, they remain in place until EPA determines that the state "has come into compliance" with its Clean Air Act obligations. Id. Sec. 7509(a). ⁵

In addition, Sec. 110(m), 42 U.S.C. Sec. 7410(m), authorizes EPA to impose discretionary sanctions on a state at any time after EPA makes one of the four findings set forth in Sec. 179(a). Consequently, in the event of state delay in submission and implementation of NAAQS program elements, EPA can levy sanctions without waiting for expiration of the 18-month period required before mandatory sanctions are imposed. The available sanctions are the same as those under the mandatory provision, but unlike the mandatory Sec. 179(b) sanctions, discretionary sanctions are not limited to any particular nonattainment area and can be imposed statewide. See Criteria for Exercising Discretionary Sanctions Under Title I of the Clean Air Act, 59 Fed.Reg. 1476 (Jan. 11, 1994).

The 1990 Amendments continued EPA's responsibility to prepare and impose a FIP within two years following a state's failure to develop and implement a complete and approved plan. See 42 U.S.C. Sec. 7410(c). In the event of a deficiency finding due to nonsubmission, incompleteness, or disapproval, EPA must promulgate a federal plan for the attainment or maintenance of NAAQS in a particular region. The FIP provides an additional incentive for state compliance because it rescinds state authority to make the many sensitive technical and political choices that a pollution control regime demands. The FIP provision also ensures that progress toward NAAQS attainment will proceed notwithstanding inadequate action at the state level. In contrast to the mandatory sanctions, which a state can avoid merely by correcting the submission deficiency, FIP promulgation can be avoided only if EPA has actually approved the state's SIP submission. ⁶

Finally, the Act provides that when a nonattainment area fails to meet an attainment deadline, EPA must reclassify that area to the next higher classification. For example, a marginal ozone nonattainment area must be reclassified to a moderate nonattainment area within six months after the attainment date has not been met. See 42 U.S.C. Sec. 7511(b)(2); see also id. Secs. 7512(b)(2) (carbon monoxide), 7513(b)(2) (particulate matter). Once reclassified, an area must meet the requirements of the new classification. See, e.g., id. Secs. 7511a(i), 7511(b)(4) (specifying additional obligations applicable to severe ozone areas that fail to attain). Because the control regime increases in cost and complexity with each step up the nonattainment ladder, see, e.g., id. Sec. 7511a(b)-(d) (specifying additional control measures for higher ozone classification levels, such as enhanced vehicle inspection and maintenance programs), the reclassification provisions function as yet another incentive for states to attain their air quality objectives within the statutory deadlines.

B. Final Rule. EPA's final rule interpreting Sec. 179 established the order in which EPA will apply the mandatory sanctions of Sec. 179(b) and the procedures for starting and stopping the 18-month sanctions clock. See 59 Fed.Reg. 39,832, 39,837-52 (August 4, 1994). EPA explained that under its reading of Sec. 179, a state can halt the sanctions clock by correcting the specific SIP deficiency that triggered the clock under Sec. 179(a). In particular, the final rule provides that when a state fails to submit a complete plan within six months of the submission deadline, the subsequent submission of a complete plan will permanently stop and reset the sanctions clock, even if the plan is ultimately unapprovable. Id. at 39,857-58. Thus, when EPA determines that a state has missed a submission deadline or submitted an incomplete plan, the 18-month countdown begins, and if the state submits a plan that meets EPA completeness criteria within that 18-month period, no sanctions will apply. EPA then has twelve months to review the plan's technical elements for compliance with the Act's substantive requirements; if EPA finds one or more of these elements lacking, EPA will disapprove the plan and a new 18-month clock will begin.

II.

Petitioner NRDC timely petitioned for review of EPA's interpretation, see 42 U.S.C. Sec. 7607(b)(1), taking issue with the type of state action EPA views as sufficient to halt the sanctions clock when a state has failed to submit a complete SIP. NRDC contends that the final rule conflicts with Congress' intent to impose mandatory sanctions no later than 18 months after EPA finds that a state has not submitted an approvable plan. In the...