Sierra Club v. Environmental Protection Agency

• Decision Date: 12 April 2001
• Docket Number: No. 00-2744,00-2744
• Citation: 252 F.3d 943
• Parties: (8th Cir. 2001) SIERRA CLUB, ETC., ET AL, PETITIONERS, v. ENVIRONMENTAL PROTECTION AGENCY, ET AL., RESPONDENTS. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 943

252 F.3d 943 (8th Cir. 2001)

SIERRA CLUB, ETC., ET AL, PETITIONERS, v. ENVIRONMENTAL PROTECTION AGENCY, ET AL., RESPONDENTS.

No. 00-2744

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 12, 2001

Filed: June 6, 2001

Petition For Review of Determination of Environmental Protection Agency

Before Bye, Beam, Circuit Judges, and Nangle, ¹ Senior District Judge.

Nangle, Senior District Judge.

Petitioners Sierra Club and the Missouri Coalition for the Environment seek review of a final rule issued by EPA and Carol Browner, Administrator of EPA, approving a revision to the State of Missouri's state implementation plan (SIP) pertaining to air pollution control requirements. Missouri submitted its plan to EPA pursuant to the Clean Air Act ("CAA"). 42 U.S.C. 7410, 7511(a)(1). The petitioners contend that EPA's approval of the SIP revision, which pertains specifically to ozone control requirements in the metropolitan St. Louis area, is inconsistent with the applicable statutory requirements and is otherwise arbitrary and capricious. We disagree and deny the petition for review.

I. BACKGROUND

The Clean Air Act "establishes a partnership between EPA and the states for the attainment and maintenance of national air quality goals." Natural Res. Def. Council v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995). Title I of the CAA allocates regulatory responsibilities between EPA and the respective states. For pollutants meeting certain criteria (including ozone), ² EPA is responsible for promulgating national ambient air quality standards (NAAQS), pursuant to Section 109 of the Act. CAA 109(b)(1), 42 U.S.C. 7409(b)(1). ³

Under the CAA, states must then adopt and develop state plans to ensure that state air quality meets the NAAQS. 42 U.S.C. 7407, 7410. Thus, each state must submit a state implementation plan (SIP) for each NAAQS promulgated by EPA, including the ozone NAAQS. 42 U.S.C. 7407, 7410(a)(1); 65 Fed. Reg. 8083 (Feb. 17, 2000). The SIP must "include a program for the enforcement of [control measures]" and regulation of stationary sources in the targeted areas. 42 U.S.C. 7410(a)(2)(C). Those states that fail to meet the NAAQS for the pollutant at issue are designated as "nonattainment areas." 42 U.S.C. 7511(a); 65 Fed. Reg. 8083. The 1990 amendments to the Clean Air Act classified each ozone nonattainment area as "Marginal Area, a Moderate Area, a Serious Area, a Severe Area or an Extreme Area," depending on the severity of the ozone problems in each area as of 1990. CAA 181(a), 42 U.S.C. 7511(a)(1). Each classification is subject to a different attainment date, ranging from three to twenty years after November 15, 1990, depending on the severity of the ozone problem. Id.

In 1991, EPA designated the St. Louis area a "moderate" ozone nonattainment area, "based on its design value of 0.138 parts per million." ⁴ 65 Fed. Reg. 8083. This classification triggered the requirement that Missouri comply with the Clean Air Act control program in order to reduce its ozone levels to meet the NAAQS. 65 Fed. Reg. 8083-84. Under the control program, the states must submit their state implementation plan, which includes a "rate of progress" plan (ROPP), to EPA by a certain date. Id. at 8083.

With regard to the ROPP for moderate nonattainment areas such as St. Louis, the Clear Air Act specifies that "[b]y no later than three years after November 15, 1990, the State shall submit a revision to the applicable implementation plan to provide for volatile organic compound emissions reductions, within 6 years after November 15, 1990, of at least 15 percent from baseline emissions, accounting for any growth in emissions after 1990." CAA 182(b)(1)(A)(i), 42 U.S.C. 7511a (b)(1)(A)(i). ⁵ The statute required the ROPP emissions reductions to be implemented and achieved and required the St. Louis area to attain the NAAQS for ozone by no later than November 15, 1996. CAA 182(b)(1)(A)(i), 42 U.S.C. 7511a(b)(1)(A)(i).

In 1995, Missouri submitted a ROPP purporting to comply with the statutory requirements, but EPA never approved it. ⁶ 65 Fed. Reg. 8084. On November 12, 1999, Missouri submitted a revised ROPP, also purporting to comply with the 15% VOC reduction requirements of 182(b)(1)(A). Id. EPA issued a final rule approving Missouri's revised ROPP on May 18, 2000. 65 Fed. Reg. 31485-89 (May 18, 2000). This petition for review was filed in this Court on July 17, 2000.

Petitioners raise several objections to the Missouri ROPP, which EPA ultimately approved. First, petitioners contend that the Missouri ROPP proposes various measures to control VOC emissions in the St. Louis area, but the state did not implement the control measures by 1996, and some measures have not yet been implemented. ⁷ Pets.' Br. at 10, 15. Further, petitioners argue that the Missouri ROPP "purports to account for emissions growth between 1990 and 1996." Id. at 10. The ROPP does not, however, "account for emissions growth anticipated (or realized) between 1996 and November 12, 1999 (the date of plan submission), the time at which all the ROPP controls will be fully implemented, or 2003 (when the reductions are predicted to be achieved)." Id. The petitioners also contend that the ROPP does not rely on actual emissions data for the years in which the state did account for growth in VOC emissions, erroneously choosing instead to use methods to arrive at "projections" for 1996 VOC emissions. Id. at 10, 24-28.

EPA contends that it reviewed the control measures contained in the 15% ROPP and concluded that the reductions claimed for each measure were properly calculated in accord with EPA's methodologies for such projections. Resp'ts' Br. at 15. EPA concluded that the contemplated control measures would reduce emissions by the required amount of 64.65 TPD. Id. The Court holds that this determination was not arbitrary and capricious.

II. DISCUSSION

The petitioners argue that EPA acted contrary to law by approving a plan submitted by the State of Missouri that purports to achieve a 15% reduction in baseline VOC emissions, but does not account for growth in emissions after 1996. Pets.' Br. at 15. Additionally, the petitioners contend that EPA acted arbitrarily and capriciously in approving the same plan, which relies on "projected" emissions for certain years to determine the required level of reductions, instead of relying on actual emissions data. Id. at 24.

This Court reviews EPA's final action based upon the applicable standard set forth in the Administrative Procedure Act, 5 U.S.C. 706. Missouri Limestone Producers Ass'n v. Browner, 165 F.3d 619, 621 (8th Cir. 1999). Under that standard, this Court will set aside EPA's action only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A). This standard of review gives agency decisions "a high degree of deference." Missouri Limestone Producers Ass'n, 165 F.3d at 621 (internal citations and quotations omitted).

Additionally, this Court's standard for reviewing an agency's interpretation of a statute it administers is set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998) (reiterating the standard set forth in Chevron). ⁸ Pursuant to Chevron, a court reviewing an agency's construction of a statute which it administers must ask two questions. Chevron, 467 U.S. at 842. The first question is whether the Congress has directly spoken to the precise question at issue. Id. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id.

If the court finds, however, that Congress has not directly spoken to the precise question at issue, the court then proceeds to the second prong of the Chevron test. At that stage, "the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation." Id. "Rather, if the statute is silent or ambiguous with respect to a specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. The Supreme Court in Chevron further explained that "[t]he court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 843 n.11.

A. Potential Post-1996 Emissions Growth

The petitioners argue that EPA acted contrary to law by approving a plan submitted by the State of Missouri that purports to achieve a 15 percent reduction in baseline VOC emissions, but does not account for growth in emissions after 1996. According to petitioners, the CAA, 42 U.S.C. 7511a(b)(1)(A)(i) demands a 15 percent reduction in VOC emissions, accounting for "any growth . . . after 1990." Pets.' Br. at 16. The petitioners argue that due to the absence of any accounting for post-1996 growth in VOC emissions, there can be no assurance that implementation of these controls will yield any actual reduction in 1990 baseline VOC emissions, much less that the controls will achieve the mandated reduction of 15 percent of the baseline.

In the absence of any accounting for post-1996 growth in VOC emissions, the petitioners contend that "it is utterly arbitrary-because impossible-to conclude that Missouri's ROPP satisfies the statutory requirement." Id. at 17. For this reason, the petitioners contend that the ROPP on its face fails to comply with the statutory requirement, and EPA's approval of the ROPP is contrary to law. Id.

The Court rejects the petitioners' argument. Initially, the Court finds that Congress did not directly speak to the issue in dispute here-that is, how the statute should be construed when a state...