New York v. E.P.A., 03-1380.

Citation443 F.3d 880
Decision Date17 March 2006
Docket NumberNo. 04-1064.,No. 05-1287.,No. 03-1390.,No. 04-1029.,No. 04-1035.,No. 03-1453.,No. 03-1381.,No. 03-1454.,No. 05-1234.,No. 03-1380.,No. 03-1383.,No. 03-1402.,03-1380.,03-1381.,03-1383.,03-1390.,03-1402.,03-1453.,03-1454.,04-1029.,04-1035.,04-1064.,05-1234.,05-1287.
PartiesState of NEW YORK, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Clean Air Implementation Project, et al., Intervenors.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

J. Jared Snyder, Assistant Attorney General, Attorney General's Office of the State of New York, argued the cause for Government Petitioners. With him on the briefs were Eliot Spitzer, Attorney General, Peter Lehner and Michael J. Myers, Assistant Attorneys General, Bill Lockyer, Attorney General, Attorney General's Office of the State of California, Matthew J. Goldman, Deputy Attorney General, Richard Blumenthal, Attorney General, Attorney General's Office of the State of Connecticut, Kimberly Massicotte and Matthew Levine, Assistant Attorneys General, M. Jane Brady, Attorney General, Attorney General's Office of the State of Delaware, Valerie S. Csizmadia, Deputy Attorney General, Lisa Madigan, Attorney General, Attorney General's Office of the State of Illinois, Thomas Davis, Chief, G. Steven Rowe, Attorney General, Attorney General's Office of the State of Maine, Gerald D. Reid, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General, Attorney General's Office of the State of Maryland, Kathy M. Kinsey, Assistant Attorney General, Thomas F. Reilly, Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, James R. Milkey, Assistant Attorney General, Kelly A. Ayotte, Attorney General, Attorney General's Office of the State of New Hampshire, Maureen D. Smith, Senior Assistant Attorney General, Peter C. Harvey, Attorney General, Attorney General's Office of the State of New Jersey, Stephanie Brand, Kevin Auerbacher, Jean Reilly, and Ruth Carter, Assistant Attorneys General, Patricia A. Madrid, Attorney General, Attorney General's Office of the State of New Mexico, Tracy M. Hughes, General Counsel, Robert A. Reiley, Assistant Counsel, Commonwealth of Pennsylvania, Department of Environmental Protection, Patrick C. Lynch, Attorney General, Attorney General's Office of the State of Rhode Island, Tricia K. Jedele, Special Assistant Attorney General, William H. Sorrell, Attorney General, Attorney General's Office of the State of Vermont, Erick Titrud and Kevin O. Leske, Assistant Attorneys General, Peggy A. Lautenschlager, Attorney General, Attorney General's Office of the State of Wisconsin, Thomas L. Dosch, Assistant Attorney General, Robert J. Spagnoletti, Attorney General, Attorney General's Office of the District of Columbia, Edward E. Schwab, Deputy Attorney General, Donna M. Murasky, Senior Litigation Counsel, Barbara Baird, District Counsel, South Coast Air Quality Management District, Daniel C. Esty, Christopher P. McCormack, Christopher G. King, Assistant Corporation Counsel, City of New York, Kristine Poplawski, Deputy City Attorney, City and County of San Francisco. John V. Dorsey, Assistant Attorney General, Attorney General's Office of the State of Maryland, William L. Pardee, Assistant Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, Eric Ames and J. Brent Moore, Attorneys, Attorney General's Office of the State of New Mexico, and Lisa S. Gelb, Counsel, City and County of San Francisco, entered appearances.

Howard I. Fox argued the cause for Environmental Petitioners and Intervenor. With him on the briefs were Keri N. Powell, John D. Walke, Jonathan F. Lewis, Ann B. Weeks, Leah Walker Casey, and Michael D. Fiorentino. Blair W. Todt entered an appearance.

Richard E. Ayres was on the brief of amicus curiae Calpine Corporation in support of petitioners.

Hope M. Babcock was on the brief of amici curiae American Thoracic Society, et al. in support of environmental petitioners.

Victor B. Flatt was on the brief of amici curiae Senator Hillary Rodham Clinton, et al. in support of petitioners.

Geoffrey M. Klineberg was on the brief of amicus curiae Atlantic Salmon Federation in support of petitioners.

Angeline Purdy and Cynthia J. Morris, Attorneys, U.S. Department of Justice, argued the cause for respondent. With them on the brief was John C. Cruden, Deputy Assistant Attorney General. Michael B. Heister, Attorney, and Carol S. Holmes, Counsel, U.S. Environmental Protection Agency, entered appearances.

F. William Brownell argued the cause for Industry Intervenors in support of respondent. With him on the brief were William H. Lewis, Jr., Henry V. Nickel, Makram B. Jaber, David S. Harlow, Katherine D. Hodge, John L. Wittenborn, Leslie Sue Ritts, Lorane Hebert, and Charles H. Knauss. Russell S. Frye entered an appearance.

Judith Williams Jagdmann, Attorney General, Attorney General's Office of the Commonwealth of Virginia, William E. Thro, State Solicitor General, D. Mathias Roussy, Associate State Solicitor General, Carl Josephson, Senior Assistant Attorney General, Troy King, Attorney General, Attorney General's Office of the State of Alabama, Robert D. Tambling, Assistant Attorney General, David W. Marquez, Attorney General, Attorney General's Office of the State of Alaska, Steven E. Mulder, Assistant Attorney General, Mike Beebe, Attorney General, Attorney General's Office of the State of Arkansas, Teresa Marks, Deputy Attorney General, Lawrence E. Long, Attorney General, Attorney General's Office of the State of South Dakota, Roxanne Giedd, Deputy Attorney General, Mark L. Shurtleff, Attorney General, Attorney General's Office of the State of Utah, Fred Nelson, Assistant Attorney General, Patrick J. Crank, Attorney General, Attorney General's Office of the State of Wyoming, Vicci M. Colgan, Senior Assistant Attorney General, Phill Kline, Attorney General, Attorney General's Office of the State of Kansas, David W. Davies, Assistant Attorney General, Jeremiah W. (Jay) Nixon, Attorney General, Attorney General's Office of the State of Missouri, James R. Layton, State Solicitor, Jon Bruning, Attorney General, Attorney General's Office of the State of Nebraska, Wayne Stenehjem, Attorney General, Attorney General's Office of the State of North Dakota, and Lyle G. Witham, Assistant Attorney General, were on the brief of Intervening States. Michael R. O'Donnell, Assistant Attorney General, Attorney General's Office of the State of Wyoming, R. Craig Kneisel, Assistant Attorney General, Attorney General's Office of the State of Alabama, Roger L. Chafee, Senior Assistant Attorney General, Attorney General's Office of the Commonwealth of Virginia, entered appearances.

Jim Petro, Attorney General, Attorney General's Office of the State of Ohio, Henry McMaster, Attorney General, Attorney General's Office of the State of South Carolina, Steve Carter, Attorney General, Attorney General's Office of the State of Indiana, Thomas M. Fisher, Solicitor General, Valerie Tachtiris, Deputy Attorney General, and John J. Bursch were on the brief of amici curiae States of Indiana, Ohio, and South Carolina in support of respondent. Steven D. Griffin, Assistant Attorney General, Attorney General's Office of the State of Indiana, entered an appearance.

Daniel J. Popeo, Paul D. Kamenar, and Paul M. Seby were on the brief of amicus curiae Washington Legal Foundation in support of respondent.

Before: ROGERS, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

In New York v. EPA, 413 F.3d 3 (D.C.Cir.2005) ("New York I"), the court addressed the first of two rules promulgated by the Environmental Protection Agency providing ways for stationary sources of air pollution to avoid triggering New Source Review ("NSR"). The court upheld in part and vacated in part the first rule. Id. at 10-11. We now address the second rule, the Equipment Replacement Provision ("ERP"), which amends the Routine Maintenance, Repair, and Replacement Exclusion ("RMRR") from NSR requirements. Under section 111(a)(4) of the Clean Air Act, 42 U.S.C. § 7411(a)(4), sources that undergo "any physical change" that increases emissions are required to undergo the NSR permitting process. See also id. §§ 7501(4), 7479(2)(C)(cross-referencing id. § 7411(a)(4)). The exclusion has historically provided that routine maintenance, repair, and replacement do not constitute changes triggering NSR. The ERP both defined and expanded that exclusion. EPA explained:

[The] rule states categorically that the replacement of components with identical or functionally equivalent components that do not exceed 20% of the replacement value of the process unit and does not change its basic design parameters is not a change and is within the RMRR exclusion.

Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion, 68 Fed.Reg. 61,248, 61,270 (Oct. 27, 2003) ("Final Rule"); see also 70 Fed.Reg. 33,838 (June 10, 2005)("Reconsideration"). Hence, the ERP would allow sources to avoid NSR when replacing equipment under the twenty-percent cap notwithstanding a resulting increase in emissions. The court stayed the effective date of the ERP on December 24, 2003. We now vacate the ERP because it is contrary to the plain language of section 111(a)(4) of the Act.

The Clean Air Act requires new and modified sources of pollution to undergo NSR, a permitting process that imposes specific pollution control requirements depending upon the geographic location of the source.1 Section 111(a)(4) of the Act describes when a source is to be considered "modified":

The term "modification" means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.

42 U.S.C. §...

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